CITATION: Ontario (Electrical Safety Authority) v. Broomfield, 2018 ONCJ 640
DATE: September 19, 2018
IN THE MATTER OF
the Electricity Act, 1998, S.O. 1998, c. 15, Schedule A
and
the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05
Between
Her Majesty the Queen in Right of Ontario
(Electrical Safety Authority)
prosecutor
and
Paul Broomfield
defendant
Ontario Court of Justice
Brampton, Ontario
Quon J.P.
Reasons for Judgment
Charge: “operate an electrical contracting business without holding a valid electrical contractor license”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, and did thereby commit an offence under s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A.
Trial held: January 25 and 26, 2017;
February 1 and 2, 2017;
June 28 and 29, 2017;
September 7, 2017;
October 24, 2017;
November 1, 2017;
November 23, 2017;
March 8, 2018; and
May 2, 2018.
Ruling on abuse of process application
and written judgment released on: September 19, 2018.
Counsel:
Ian Johnston, Phillip Wright, and David Cowling, counsel for the Electrical Safety Authority.
Paul Broomfield, self-represented until he retained legal counsel for the November 23, 2017; March 8 and May 2, 2018, trial dates.
David North, legal counsel for the defendant, appeared on the November 23, 2017; March 8 and May 2, 2018, trial dates.
Cases Considered Or Referred To:
Maves v. Grand Trunk Pacific Ry. Co., [1913] A.J. No. 53 (Alta. C.A.).
R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] S.C.J. No. 79 (S.C.C.).
R. v. Albright, 1987 26 (SCC), [1987] S.C.J. No. 56 (S.C.C.).
R. v. Biddle, 1995 134 (SCC), [1995] S.C.J. No. 22 (S.C.C.).
R. v. Chamandy, [1934] O.J. No. 235 (Ont. C.A.), per Latchford, C.J., Riddell and Macdonnell, JJ.A.
R. v. Cyr, 2012 ONCA 919, [2012] O.J. No. 6148 (Ont. C.A.), per Weiler, Watt and Epstein JJ.A.
R. v. Deslauriers, 1992 4022 (MB CA), [1992] M.J. No. 502 (Man. C.A.).
R. v. deKock, [2009] A.J. No. 628 (Alta. C.A.).
R. v. Fitzpatrick, 1995 44 (SCC), [1995] S.C.J. No. 94 (S.C.C.).
R v Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (S.C.C.).
R. v. K.T. (2013), 2013 ONCA 257, 295 C.C.C. (3d) 283 (Ont. C.A.), per Juriansz, Watt and Epstein JJ.A.
R. v. Levogiannis, 1993 47 (SCC), [1993] S.C.J. No. 70 (S.C.C.)
R. v. Papasotiriou-Lanteigne, [2018] O.J. No. 3116 (Ont. S.C.), per Goldstein J.
R. v. Sanderson, [2017] O.J. No. 2986 (Ont. C.A.), per Feldman, Gillese and Pepall JJ.A.
R. v. Sault Ste. Marie (1978), 1978 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.).
R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] S.C.J. No. 62 (S.C.C.).
R. v. Sekhon, 2014 SCC 15, [2014] S.C.J. No. 15 (S.C.C.).
R. v. Sunjka, [2006] O.J. No. 2204 (Ont. C.A.), per Goudge, Gillese and LaForme JJ.A.
R. v. T.B., 2009 ONCA 177, [2009] O.J. No. 751 (Ont. C.A.), per Moldaver, Borins and Blair JJ.A.
R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] S.C.J. No. 75 (S.C.C.).
R. v. Tossounian, [2017] O.J. No. 3842 (Ont. C.A.), per Juriansz, Pepall and Trotter JJ.A.
R. v. W.(D.), 1994 76 (SCC), [1994] S.C.J. No. 91 (S.C.C.).
R. v. White, 1999 689 (SCC), [1999] S.C.J. No. 28 (S.C.C.).
Rule in Browne v. Dunn (1893) 1893 65 (FOREP), 6 R. 67 (H.L.).
Cases On Abuse Of Process:
Boucher v. The Queen, 1954 3 (SCC), [1954] S.C.J. No. 54 (S.C.C.).
Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391 (S.C.C.).
R. v. Anderson, 2014 SCC 41, [2014] S.C.J. No. 41 (S.C.C.).
R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16 (S.C.C.).
R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509 (S.C.C.).
R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 (S.C.C.).
R. v. Boudreau, 2012 ONCA 830, [2012] O.J. No. 5597 (Ont. C.A.), per MacPherson, Cronk and Blair JJ.A.
R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.).
R. v. I.B., [2014] O.J. No. 3786 (Ont. C.J.), per Otter J.
R. v. Jewitt, 1985 47 (SCC), [1985] S.C.J. No. 53 (S.C.C.).
R. v. Keyowski, 1988 74 (SCC), [1988] 1 S.C.R. 657 (S.C.C.).
R. v. Mallory, 2007 ONCA 46, [2007] O.J. No. 236 (Ont. C.A.), per Sharpe, Simmons and Lang JJ.A.
R. v. Nixon, 2011 SCC 34, [2011] S.C.J. No. 34 (S.C.C.).
R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.).
R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.).
R. v. Waugh (1985), 1985 3557 (NS CA), 68 N.S.R. (2d) 247 (N.S.C.A.).
R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (Ont. C.A.), per O'Connor A.C.J.O., Armstrong and Epstein JJ.A.
United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587 (S.C.C.).
Cases On A Right To A Fair Trial:
R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 (S.C.C.).
R. v. Harrer, 1995 70 (SCC), [1995] S.C.J. No. 81 (S.C.C.).
R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309 (S.C.C.).
R. v. Rain, 1998 ABCA 315, [1998] A.J. No. 1059 (Alta. C.A.), per Irving, Hunt and Sulatycky JJ.A.
Cases On Evidence Elicited From An Accused On The Credibility Of Prosecution Witnesses:
R. v. A.J.R., 1994 3447 (ON CA), [1994] O.J. No. 2309 (Ont. C.A.), per Osborne, Doherty and Laskin JJ.A.
R. v. Daley, 2007 SCC 53, [2007] S.C.J. No. 53 (S.C.C.).
R. v. Gonzague, 1983 3541 (ON CA), [1983] O.J. No. 53 (Ont. C.A.), per Martin, Goodman and Robins JJ.A.
R. v. Khan,[2011] B.C.J. No. 1776 (B.C.C.A.).
R. v. Logiacco, 1984 3459 (ON CA), [1984] O.J. No. 15 (Ont. C.A.), per Dubin, Goodman and Cory JJ.A.
R. v. Rose, 2001 24079 (ON CA), [2001] O.J. No. 1150 (Ont. C.A.), per Charron, Feldman and MacPherson JJ.A.
R. v. Vandenburge, [1995] O.J. No. 243 (Ont. C.A.), per Houlden, McKinlay and Labrosse JJ.A.
Cases On Counsel Asking Leading Questions Of Their Own Witness:
R. v. Rose, 2001 24079 (ON CA), [2001] O.J. No. 1150 (Ont. C.A.), per Charron, Feldman and MacPherson JJ.A.
Cases On The Admissibility Of Investigative Hearsay:
R. v. Dhillon, 2002 41540 (ON CA), [2002] O.J. No. 2775 (Ont. C.A.), per Weiler, Laskin and Goudge JJ.A.
R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127 (Ont. C.A.), per Laskin, Feldman and Watt JJ.A.
Cases On Lay Opinion Evidence Of An Investigator:
R. v. Jenkins, [2018] O.J. No. 965 (Ont. S.C.), per Edwards J.
Cases On Role of Crown Prosecutors:
Boucher v. The Queen, 1954 3 (SCC), [1954] S.C.J. No. 54 (S.C.C.).
R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481 (S.C.C.).
R. v. Daly, [1992] O.J. No. 1504 (Ont. C.A.), per Morden A.C.J.O., Osborne and Doherty JJ.A.
R. v. Felderhof, 2003 37346 (ON CA), [2003] O.J. No. 4819 (Ont. C.A.), per Carthy, Doherty and Rosenberg JJ.A.
R. v. Henderson, 1999 19924 (ON CA), [1999] O.J. No. 1216 (Ont. C.A.), per McMurtry C.J.O., Finlayson, Osborne, Labrosse and CharronJJ.A.
R. v. Stinchcombe, 1991 45 (SCC), [1991] S.C.J. No. 83 (S.C.C.).
R. v. Yakeleya, 1985 3478 (ON CA), [1985] O.J. No. 144 (Ont. C.A.), per Martin, Zuber and Finlayson JJ.A.
Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, 13 C.C.C. (3d) 161 (S.C.C.).
Cases On Prosecutors Misconduct:
Boucher v. The Queen, 1954 3 (SCC), [1954] S.C.J. No. 54 (S.C.C.).
Elzein v. The Queen, [1982] QCCA 454, 1982 CarswellQue 771, JE 82-710 (Que. C.A.).
Landolfi v Fargione, 2006 9692 (ON CA), [2006] O.J. No. 1226 (Ont. C.A.), per Doherty, Cronk and MacFarland JJ.A.
Moubarak v. The Queen, [1982] J.Q. no 471 (Que. C.A.).
Pisani v. The Queen, 1970 30 (SCC), [1971] S.C.R. 738, (1970), 1 C.C.C. (2d) 477 (S.C.C.).
R. v. Ahluwalia, 2000 17011 (ON CA), [2000] O.J. No. 4544 (Ont. C.A.), per Osborne A.C.J.O., Doherty and Laskin JJ.A.
R. v. Boudreau, 2012 ONCA 830, [2012] O.J. No. 5597 (Ont. C.A.), per MacPherson, Cronk and Blair JJ.A.
R. v. C.(R.) (1999), 1999 BCCA 411, 137 C.C.C. (3d) 87 (B.C.C.A).
R. v. Cavan, 1999 9309 (ON CA), [1999] O.J. No. 4181, (Ont. C.A.), per Osborne A.C.J.O., Abella and MacPherson JJ.A. (ad hoc).
R. v. Charest (1990), 1990 3425 (QC CA), 76 C.R. (3d) 63 (Que. C.A.).
R. v. Drover, [2000] N.J. No. 36 (N.L.C.A.).
R. v. Dvorak (2001), 2001 BCCA 347, 156 C.C.C. (3d) 286 (B.C.C.A.).
R. v. Gratton, [1985] O.J. No. 36 (Ont. C.A.), per Dubin, Thorson and Cory JJ.A.
R. v. Henderson, 1999 19924 (ON CA), [1999] O.J. No. 1216 (Ont. C.A.), per McMurtry C.J.O., Finlayson, Osborne, Labrosse and Charron JJ.A.
R. v. Labarre (1978), 1978 2425 (QC CA), 45 C.C.C. (2d) 171 (Que. C.A.).
R. v. Logiacco, 1984 3459 (ON CA), [1984] O.J. No. 15 (Ont. C.A.), per Dubin, Goodman and Cory JJ.A.
R. v. Mallory, 2007 ONCA 46, [2007] O.J. No. 236 (Ont. C.A.), per Sharpe, Simmons and Lang JJ.A.
R. v. McDonald, [1958] O.J. No. 604 (Ont. C.A.), per Laidlaw, Lebel and Morden, JJ.A.
R. v. McNeil, 2009 SCC 3, [2009] S.C.J. No. 3 (S.C.C.).
R. v. Michaud, 1996 211 (SCC), [1996] 2 S.C.R. 458, 107 C.C.C. (3d) 193 (S.C.C.).
R. v. Munroe, [1995] O.J. No. 819 (Ont. C.A.), per Griffiths, Galligan and Austin JJ.A.
R. v. Murphy (1981), 1981 3367 (NS CA), 43 N.S.R. (2d) 676 (N.S.C.A.).
R. v. Nugent, 1995 8927 (ON CA), [1995] O.J. No. 1838 (Ont. C.A.), per Finlayson, Abella and Austin JJ.A.
R. v. Patrick, [2007] O.J. No. 1373 (Ont. S.C.), per Dambrot J.
R. v. Peavoy, 1997 3028 (ON CA), [1997] O.J. No. 2788 (Ont. C.A.), per Doherty, Weiler and Moldaver JJ.A.
R. v. Regan, 2002 SCC 12, [2002] S.C.J. No. 14 (S.C.C.).
R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279 (Ont. C.A.), per Laskin, Miller and Paciocco JJ.A.
R. v. Robinson, 2001 24059 (ON CA), [2001] O.J. No. 1072 (Ont. C.A.), per Rosenberg, Moldaver and Goudge JJ.A.
R v Romeo, 1991 113 (SCC), [1991] 1 S.C.R. 86, 62 C.C.C. (3d) 1 (S.C.C.).
R. v. Rose, 1996 573 (ON CA), [1996] O.J. No. 1554 (Ont. C.A.), per Dubin C.J.O., Brooke, Carthy, Osborne and Laskin JJ.A.
R. v. Rose, 1998 768 (SCC), [1998] S.C.J. No. 81, [1998] 3 SCR 262 (S.C.C.).
R. v. Sweitlinski, 1994 71 (SCC), [1994] 3 S.C.R. 481 (S.C.C.).
R. v. Trang, 2002 ABQB 286, [2002] 7 W.W.R. 157, 311 A.R. 284 (Alta. Q.B.).
R. v. Trochym, 2007 SCC 6, [2007] S.C.J. No. 6 (S.C.C.).
R. v. Wise, 2002 BCCA 80, [2002] B.C.J. No. 234 (B.C.C.A.), aff’d 2003 SCC 1, [2003] 1 S.C.R. 3 (S.C.C.).
Tremblay v. The Queen (1963), 1963 1121 (QC CA), 40 C.R. 303 (Que. C.A.).
Cases On Inappropriate Cross-Examination Of An Accused
R. v. Aalders, 1993 99 (SCC), [1993] S.C.J. No. 67 (S.C.C.).
R. v. Dalen, 2008 BCCA 530, [2008] B.C.J. No. 2455 (B.C.C.A.).
R. v. Fanjoy, [1985] S.C.J. No. 55 (S.C.C).
R. v. Khan, 1998 15007 (BC CA), [1998] B.C.J. No. 1450 (B.C.C.A.).
R. v. Lawrence, [2015] B.C.J. No. 1724 (B.C.C.A.).
R. v. Lowe, [2009] B.C.J. No. 1470 (B.C.C.A.).
R. v. Varga, 1994 8727 (ON CA), [1994] O.J. No. 1111 (Ont. C.A.), per Brooke, Labrosse and Doherty JJ.A.
Cases On Prosecutor Commenting On An Accused’s Failure To Cooperate With Investigators Or on An Accused’s Refusal To Answer Investigator’s Questions:
R. v. Clarke, 1979 3004 (NS CA), [1979] N.S.J. No. 620 (N.S.C.A.).
R. v. Noble, [1977] 1 S.C.R. 874 (S.C.C.).
R. v. Schell, [2000] O.J. No. 3633 (Ont. C.A.), per Rosenberg, MacPherson and Sharpe JJ.A.
R. v. Marcoux, [1975] S.C.J. No. 54 (S.C.C.).
R. v. Turcotte, 2005 SCC 50, [2005] S.C.J. No. 51 (S.C.C.).
Cases On Prosecutor Adducing Evidence Bad Character In Regards To An Accused’s Lifestyle:
R. v. Chambers, 1990 47 (SCC), [1990] S.C.J. No. 108 (S.C.C.).
R. v. G.(1994), 1994 477 (BC CA), 90 C.C.C. (3d) 97 (B.C.C.A.).
R. v. G.(S.G.), 1997 311 (SCC), [1997] S.C.J. No. 70 (S.C.C.).
R. v. Lawrence, [2015] B.C.J. No. 1724 (B.C.C.A.).
Cases On Role of Trial Judge In Trials With Unrepresented Accused:
Boucher v. The Queen, 1954 3 (SCC), [1954] S.C.J. No. 54 (S.C.C.).
Brouillard v. The Queen(1985), 1985 56 (SCC), 17 C.C.C. (3d) 193 (S.C.C.).
R. v. Gendreau, [2011] A.J. No. 991 (Alta. C.A.).
R. v. Henderson, 1999 19924 (ON CA), [1999] O.J. No. 1216 (Ont. C.A.), per McMurtry C.J.O., Finlayson, Osborne, Labrosse and Charron JJ.A.
R. v. McGibbon(1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), per Griffiths, Grange and Goodman JJ.A.
R. v. Moghaddam, [2006] B.C.J. No. 567 (B.C.C.A.).
R. v. Tran, 2001 5555 (ON CA), [2001] O.J. No. 3056 (Ont. C.A.), per Weiler, Austin and Borins JJ.A.
Cases On How Trial Judge Can Deal With Misconduct Of Legal Counsel In A Trial:
Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] S.C.J. No. 27 (S.C.C.).
R. v. Anderson, 2014 SCC 41, [2014] S.C.J. No. 41 (S.C.C.).
Cases On Ordering Costs Against The Prosecution:
R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] S.C.J. No. 79 (S.C.C.).
Statutes, Regulations and Rules Cited:
Bill 70 (Ministry of Consumer and Business Services Statute Law Amendment Act, 2004, S.O. 2004, c. 19).
Business Names Act, R.S.O. 1990, c. B.17, s. 2(3).
Canadian Charter of Rights and Freedoms, ss. 7, and 24(1).
Electrical Safety Authority Regulation (Electricity Act, 1998), O. Reg. 89/99, s. 1.
Electrical Safety Code (Electricity Act, 1998), O. Reg. 164/99, rule 2-000.
Electrical Distribution Safety Regulation (Electricity Act, 1998), O. Reg. 22/04.
Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, ss. 1, 1(f), 113.2(1), 113.13(4)(b), 113.13(6), 113.13(7), 113.20(1)(d), 113.20(7), and Part VIII.
Law Society of Ontario’s Rules of Professional Conduct, s. 5.1-3.
Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, ss. 1(1), 2, 2(10), 3, 4, 8, 9, and 33(2).
Provincial Offences Act, R.S.O. 1990, c. P.33, s. 34.
Reference Material Considered or Cited:
Van Duzer, J.A. The Law of Partnerships and Corporations, 2nd. ed. (Toronto, Canada: Irwin Law Inc., 2003), pp. 86 to 88.
Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th Ed., § 14.140.
Paciocco, D.M. and Steusser, L. The Law of Evidence, 6 ed. (Toronto, Ontario: Irwin Law Inc., 2011), pp. 2, 3, 4, 29, 30, 42, 43, 52-54, 105, 118, 183, 223, 416-417, 500-501.
Exhibits entered:
Exhibit "1" - copy of a SAP Notification Printout document (printed on Jan. 11, 2016) which states that the notification date was July 18, 2014, indicating a “Z7” hazard investigation was required to be conducted at 22 Vespahills Cres., Brampton, and that there had been an attendance at the location on July 21, 2014, by ESA Inspector Shaun Smith, which is contained in TAB 13, pages 043 and 044, of the Prosecution’s Book of Documents. Page 043 states that “NO PERMITS IN OUR SYSTEM FOR THIS WORK” and that Gary Corbett has been notified and that a permit had been taken out by LEC on AUG. 13 2014. Page 044 list the defects for 22 Vespahills Cres., Brampton, which includes “Only a Licensed Contractor can take out a notification and complete this work”. (2 pages).
Exhibit "2" - copy of a “Notification” document dated July 18, 2014, that was sent by ESA Inspector Shaun Smith to Paul Broomfield, PB Construction, 1329 Martin Grove Road, Rexdale, Ontario indicating there is no permit in the ESA system for 22 Vespahills Cres., Brampton, and that Paul Broomfield’s company (PB Construction) is not licenced by ECRA/ESA to perform electrical work. The notification also indicates that Shaun Smith conducted the inspection of 22 Vespahills Cres. was done by Shaun Smith on July 21, 2014. The notification also informs Paul Broomfield to stop all electrical work immediately and leave the installation in a safe condition. This notification document is contained in TAB 14, pages 045, 046, 047, of the Prosecution Book of Documents (3 pages).
Exhibit "3" - copy of a SAP Notification Printout document dated Jan. 11, 2016, sent to JAY POWER SYSTEMS INC. at 32 Westowanis Dr., Etobicoke indicating a permit had been taken out for the residential house at 22 Vespahills Cres., Brampton, Ontario, which is contained in TAB 15, pages 048 and 049 of the Prosecution’s Book of Documents (2 pages).
Exhibit "4" - photograph of the residential house that is located at 22 Vespahills Crescent, Brampton, which is contained in TAB 17, page 051, of the Prosecution’s Book of Documents (1 page).
Exhibit "5" - copy of P & B Construction Business Card, which is contained in Tab 1 (Pages 001 and 002) of the Prosecution’s Book of Documents. The front of the business card has the defendant’s name “Paul Broomfield” printed under the business name of “PB Construction”. It also states the address of the business is at 1329 Martin Groove Road, Rexdale – Etobicoke ON M9W 4X5 and a telephone number of (647) 839 -9096. The back of the business card states “Renovations”, “Commercial”, “Residential”, “Tiles & Drywall”, and “Electrical” (2 pages).
Exhibit "6" - copy of handwritten document of an agreement between Ahmed Khan and Paul Broomfield dated September 9, 2013, detailing additional work for 291 Boon Avenue, Toronto, that was not part of the original agreement dated March 24, 2013, as well as work to be deleted from the original agreement, which is contained in Tab 3, page 008, of the Prosecution’s Book of Documents (1 page).
Exhibit "7" - copy of handwritten document containing WSIB number and Gore Mutual Insurance policy number, which is contained in Tab 3, page 009, of the Prosecution’s Book of Documents (1 page).
Exhibit "8" - Copies of 14 cheques with 12 cheques payable to P and B Construction; 1 cheque payable to Paul Broomfield; and 1 cheque payable to Ahmed Khan re: drywall, which are contained in Tab 4, pages 010 to 022, of the Prosecution’s Book of Documents (13 pages).
Exhibit "9" - copy of Excel spreadsheet document with a list of payments or advances totaling $115,900 paid to Paul Broomfield, which is contained in Tab 4, page 023, of the Prosecution’s Book of Documents (1 page).
Exhibit "10" - copy of Wiztronic Inc. invoice document for rewiring of house and for electrical work performed at 291 Boon Ave., Toronto for the amount of $1695.00 ($1500 and HST of $195) addressed to Hensey Khan, dated Jan. 16, 2014, which is contained in Tab 5, page 024 of the Prosecution’s Book of Documents. The invoice also indicates that Wiztronic Inc. of 198 Cabana Drive, Toronto is an “Electrical & Communication Contractor”. The invoice document has handwriting that states, “See sheet 192 for scope of work done on house” and “Run new wires in attic for lighting.” (1 page).
Exhibit "11" - copy of two-page document showing itemized work done by WIZTRONIC Inc., a “Electrical & Communication Contractor” for residential, commercial, and industrial, that is part of the Wiztronic Inc. invoice dated Jan. 16, 2014, for electrical work performed at 291 Boon Ave., Toronto, Ontario, which is contained in Tab 5, pages 025 and 026 of the Prosecution’s Book of Documents. The two-page document lists the itemized work performed at 291 Boon Ave., Toronto as: (1) Installation of 200 amp panel, (2) Wiring of basement washroom, (3) Installing 8 plugs in basement, (4) Installing 15 pot lights in basement, (5) Washer circuit, (6) Dryer circuit, (7) Furnace Circuit, (8) Hot Water tank circuit, (9) Lights and Utility room (10) stairwell light, (11) smoke detector circuit, (12) stove circuit, (13) Refrigerator circuit, (14) dishwasher circuit, (15) countertop circuit, (16) Range hood circuit, (17) Install 26 pot lights, (18) outside front and rear lights, (19) Feeder circuits for upstairs (6). Page 026 of the document also stated, “Removed all old wiring”. (2 pages).
Exhibit "12" - copy of renovation contract between Paul Broomfield and P & B Construction (contractor) of an address of 1534 Evenside Cres., Mississauga, and Ahmed Khan (owner) of 291 Boon Ave., Toronto, Ontario which is contained in Tab 2 of the Prosecution Book of Documents (pages 003 to 007). The contract is dated March 20, 2013 and signed by Paul Broomfield and Ahmed Khan on March 24, 2013. In addition the contract states that the Contract price is $87,000.00 inclusive of HST. The contract also states that “Unless otherwise stated, the Contractor agrees to supply all materials, labour and supervision to perform the WORK. Under the heading “Sub trades” in handwriting, the parties agreed that “As per contractor all trades work for him and he wont Subcontract any work. All work top to bottom are guaranteed as warranted by P and B Construction for one year Part and Labour”. However, the contract does not specifically refer to doing any electrical work and only specifically mentioned demolishing “all three floors inside complete, garbage and clean including cast iron, and existing heating system, electrical, plumbing, all drywalls, ceilings etc. nothing is excluded. Remove existing kitchen cabinets to be installed in kitchenette downstairs”. (5 pages).
Exhibit "13" - copy of ESA printout documents of ESA inspections of 291 Boon Avenue, Toronto, prepared by ESA Inspector Timothy Berry, indicating a notification date of September 26, 2014, with a listing of defects which is contained in Tab 8, pages 032 to 036 of the Prosecution’s Book of Documents (5 pages).
Exhibit "14" - copy of document entitled “General Inspection” prepared by ESA Inspector Timothy Berry indicating a notification date as September 30, 2014, that indicates that Ahmed Khan of 291 Boon Avenue, Toronto, had contacted ESA about having hired someone to do electrical work with no permit, which is contained in Tab 6, page 027 of the Prosecution’s Book of Documents (1 page).
Exhibit "15" - copy of a document with the heading, “ElecCheck Inspection”, indicating a notification date as September 30, 2014, prepared by ESA Inspector Timothy Berry, which lists dates of inspections and defects in the electrical work at 291 Boon Avenue, Toronto, which is contained in Tab 7, pages 028 to 031 of the Prosecution’s Book of Documents (4 pages).
Exhibit "16" – copy of “Credit Voucher – Non Negotiable” for the amount of $20,000 that is dated August 8, 2011, that was issued to Paul Broomfield from Razeka Bacchus, Tab 12, page 042 of the Prosecution’s Book of Documents (1 page).
Exhibit "17" – copy of affidavit of Scott Eason, ESA Project Coordinator, Contractor Licencing, sworn on January 8, 2016, and addressed to ESA Investigator Gary Corbett, stating that he had done a search of ESA records on January 6, 2015 at 9:55 a.m. and that the ESA records indicate that Paul Broomfield is not registered as a Licenced Electrical Contractor with the ESA and had never been registered since January 2, 2007. (1 page)
Exhibit "18" - copy of “Business Names Report” for “P & B Construction”, printed on March 2, 2013, at 14:31:31, which is found in Tab 16, page 050, of the Prosecution’s Book of Documents. The report states that a business named P & B Construction (B.I.N.: 220191787) had been registered on February 21, 2012, under the Business Names Act as a general partnership. It also indicates that the principal place of business in Ontario for P & B Construction is 32 Pebblestone Circle, Brampton, Ontario, and its activity carried out is stated as construction. The report also indicates that the registration would expire on February 20, 2017 (1 page).
Exhibit "19" - copy of invoice document for electrical work issued to Ahmed Khan of 291 Boon Ave., Toronto, from VK Electric Services of Oakville Ontario dated November 17, 2014, for the amount of 4135.80 (which includes $200 for ESA permit and inspection), which is contained in Tab 10, page 039 of the Prosecution’s Book of Documents (1 page).
Exhibit "20" - copy of “SAP Notification printout” document, prepared by ESA Inspector Timothy Berry for 291 Boon Ave., Toronto, indicating a notification date of October 3, 2014 and a completion date of November 17, 2014, and also indicating that the licenced electrical contractor had completed the defects inside the house, which is contained in Tab 9, pages 37 and 38 of the Prosecution’s Book of Documents (2 pages).
Exhibit "21" – original affidavit of Scott Eason, ESA Project Specialist, Contractor Licencing, sworn on June 21, 2017, and addressed to ESA Investigator Gary Corbett, stating that he had done a search of ESA records on June 21, 2017 at 8:43 a.m. into the names “Ken Roy”, “Roy Ken”, or “Kenroy” and did not find anyone with those names in the ESA records that are registered as a Licenced Electrical Contractor with the ESA and those names have never been registered since January 1, 2007 (1 page).
Table of Contents
Paragraph
No.
- INTRODUCTION
1
- THE CHARGES
13
- BACKGROUND
(A) SUMMARY OF THE FACTS
14
(B) HISTORY OF THE PROCEEDINGS
43
- APPLICABLE LAW
62
- ISSUES
71
- ANALYSIS AND DECISION
(A) PROSECUTION’S APPLICATION TO AMEND THE START DATE FOR THE CHARGE IN COUNT #3
75
(B) THE ABUSE OF PROCESS APPLICATION
(1) The Position Of The Parties
(a) The defendant’s position
79
(b) The prosecution’s position
83
(2) The Abuse of Process Doctrine
87
(a) The burden of proof for establishing an abuse of process.
91
(b) The test for determining whether a stay of proceedings is appropriate when there is an abuse of process.
92
(c) Available remedies for an abuse of process.
97
(3) Provincial Offences Trials
(a) The purpose of a trial.
101
(b) Provincial offences trials involving strict liability offences are, for the most part, different from criminal trials substantively and procedurally, especially in respect to the mental element to be proven and in respect to evidential burdens of proof.
104
(i) The present trial was not a jury trial.
106
(ii) Trial judges are able to disabuse their minds of irrelevant or inadmissible prejudicial evidence.
108
(iii) For strict liability offences, the prosecution can elicit rebuttal evidence during its case-in-chief which would anticipate the due diligence defence or other defences being raised.
110
a) There is a duty in certain circumstances for a person to produce documents and provide assistance and information to ESA inspectors.
118
(4) Duties And Role Of An ESA Prosecutor
124
(5) The Defendant Is Entitled To A Fair Trial But Not A Perfect Trial
128
(6) Duty Of A Trial Judge When Dealing With An Unrepresented Accused
132
(a) The amount of assistance provided by the trial judge to a self-represented accused is at the discretion of the trial judge.
136
(b) How can trial judge deal with misconduct of legal counsel in a trial?
139
(c) The application of evidence rules in a trial.
141
(i) The prosecution’s blanket objection to the defendant’s hearsay testimony and to the defendant’s testimony that offends the Rule in Browne and Dunn.
145
(7) Was There Prosecutorial Misconduct During The Trial?
153
(a) The prosecutor's actions or conduct during the trial that the defendant contends would constitute misconduct.
154
(i) The prosecutor had asked leading questions of his own witnesses in the trial.
159
(ii) The prosecutor had elicited hearsay and lay opinion evidence from prosecution witnesses.
167
a) The prosecutor had elicited hearsay evidence from prosecution witnesses.
170
- Investigative hearsay is permitted to rebut a claim of an inadequate investigation.
177
b) The prosecutor had elicited lay opinion evidence from the ESA Investigator.
195
(iii) The prosecutor had elicited or had presented irrelevant bad character evidence.
211
(iv) The prosecutor gave evidence.
223
(v) The prosecutor got the defendant to comment on the veracity of prosecution witnesses.
233
(vi) The prosecutor had cross-examined or questioned the defendant about his relationship with his counsel and made suggestive commentary about the reasons why his legal representative may have stopped acting for the defendant.
249
(vii) The prosecutor had attacked and inappropriately commented on the defendant’s lifestyle and associations with unsavory persons.
261
(viii) The prosecutor had inserted editorial commentary into his cross-examination of the defendant by providing his personal opinion about the merits of the case against the defendant, on the merits of the defendant’s defence, and on the credibility or veracity of the defendant’s testimony.
270
(ix) The prosecutor had used sarcastic and demeaning language when cross-examining the defendant.
279
(x) The prosecutor had grilled the defendant on the witnesses he intended to call and his efforts to contact and get the witnesses to court and whether the defendant had brought any of the documents that the defendant said he had and which he had promised to bring.
286
(xi) The prosecutor had led evidence regarding the defendant’s failure to cooperate with the authorities, in particular the defendant’s refusal to speak with authorities, and the prosecutor had also cross-examined the defendant on his failure to assert his innocence when confronted by investigators.
291
a) Statutes governing regulated industries sometimes compel participants to cooperate with inspectors.
297
(xii) The prosecutor had argued with the defendant directly rather than speaking or making submissions through the court.
301
(xiii) The prosecutor had threatened to request the maximum penalty available for the defendant for arbitrary reasons.
307
(8) The Main Category: Did The Prosecutor’s Conduct During The Trial Prevent The Defendant From Having A Fair Trial
313
(9) The Residual Category: Did The Prosecutor’s Conduct During The Trial Cause Prejudice To The Integrity Of The Judicial Process?
319
(10) Disposition Of The Abuse Of Process Application
324
(C) DID THE PROSECUTION PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAS COMMITTED THE 3 REGULATORY OFFENCES THAT HE HAS BEEN CHARGED WITH?
(1) Was The Defendant Operating An Electrical Contracting Business Without Holding A Valid Electrical Contractor Licence?
(a) S. 3 of O. Reg. 570/05.
326
(i) The defendant has not been licenced by the ESA as an electrical contractor for the province of Ontario.
327
(b) Legislative purpose of the Electricity Act, 1998.
330
(c) What Type Of Activity Would Entail Electrical Work For Which A Person Would Need To Be A Licenced Electrical Contractor In Ontario?
331
(d) When does an electrical permit for electrical work for a residential house have to be obtained?
339
(e) Both the defendant and Steve Duff had not been licensed by the ESA as an electrical contractor in Ontario.
343
(f) Is “P & B Construction” a separate legal entity?
348
(g) What was Paublo Medina’s involvement with the three renovations in question?
350
(h) What was Steve Duff’s involvement with the three renovations in question?
356
(i) Did Paul Broomfield have a partner in any of the three renovations?
362
(i) Was Paublo Medina a partner in the 22 Vespahills Crescent, Brampton renovation?
370
(ii) Was Ali Nabbouh a partner in the 291 Boon Avenue, Toronto renovation?
374
a) Did the prosecution have to disclose the conversation between Ali Nabbouh and ESA Investigator to the defendant prior to Ali Nabbouh testifying, even though the defendant was the party calling Ali Nabbouh?
377
(iii) Is there any credible evidence that the defendant had a partner in the renovation of 22 Vespahills Crescent, Brampton or of 291 Boon Avenue, Toronto?
385
(j) Is there any evidence that someone licenced as an electrician or licenced as an electrical contractor in Ontario did any of the electrical work at any of the three residences in question?
393
(k) Has the credibility of any of the three homeowners been undermined?
396
(l) Has there been collusion between the three homeowners or a conspiracy against the defendant by the three homeowners?
404
(2) Has The Prosecution Proven That The Defendant Has Committed The Actus Reus Of The Three Offences Beyond A Reasonable Doubt?
(a) Is there evidence that the defendant had been engaged in performing electrical work that is covered under the Ontario Electrical Safety Code for which the defendant is required to hold a valid Ontario electrical contractor’s licence?
(i) Count #1 - 22 Vespahills Crescent, Brampton
408
(ii) Count #2 - 291 Boon Avenue, Toronto
415
(ii) Count #3 - 94 Narrow Valley Crescent, Brampton
437
(b) Conclusion On Whether The Prosecution Has Proven Beyond A Reasonable Doubt The Defendant Has Committed The Actus Reus Of The Offence For The Three Charges.
451
(3) Due Diligence Defence
(a) Did The Defendant Establish The Defence Of Due Diligence In Respect To Each Of The Charges On A Balance Of Probabilities?
459
(i) 22 Vespahills Crescent, Brampton
463
(ii) 291 Boon Avenue, Toronto
466
(iii) 94 Narrow Valley Crescent, Brampton
473
(4) Did The Prosecution Prove Beyond A Reasonable Doubt That The Defendant Had Been Operating An Electrical Contracting Business Without Holding A Valid Electrical Contractor Licence For All Three Houses?
474
- DISPOSITION
477
- INTRODUCTION
1. INTRODUCTION
1Some trials like trains, run on schedule and stay on the tracks. Occasionally, a trial like a train can fall behind schedule, or even derail, due to unfortunate or serendipitous events. Paul Broomfield, the defendant in this regulatory prosecution under Ontario’s Electricity Act, 1998, claims that this is one of those such occasions, and that his present trial has indeed fallen off the rails, since he claims that he is no longer receiving a fair trial and that the integrity of the judicial process has also been undermined because of the egregious misconduct of the Crown prosecutor during that portion of the trial when the defendant had been self-represented (the defendant had been unrepresented for 9 of the 12 days of scheduled trial dates and had only been represented by legal counsel for the last 3 days of the trial). Ergo, the defendant brings an application for an abuse of process under s. 7 of the Charter based on that prosecutorial misconduct and seeks a remedy under s. 24(1).
2The prosecutorial misconduct complained of by the defendant involves the prosecutor purportedly ridiculing the unrepresented defendant; the prosecutor making sarcastic and demeaning comments about the defendant’s memory and the way the defendant was conducting his defence; and in the way the prosecutor had improperly asked leading questions and elicited hearsay and opinion evidence from his own witnesses and by inappropriately presenting irrelevant and bad character evidence. In addition, the defendant contends that the prosecutor had also improperly gave evidence in the trial; that the prosecutor had inappropriately inquired into the defendant’s relationship with his previous legal representative; that the prosecutor had unfairly commented on the defendant’s lifestyle and his associations with unsavory persons; that the prosecutor had inappropriately inserted editorial commentary in the trial about the prosecutor’s personal belief on the defendant’s credibility and on the defendant’s potential defences. As well, the defendant contends that the prosecutor had improperly grilled the defendant about what witnesses the defendant had intended to call and the efforts made by the defendant to do so; that the prosecutor had inappropriately questioned the defendant about his failure to assert his innocence at the outset with the ESA inspector and on the defendant’s failure to speak and cooperate with ESA inspectors and investigators; that the prosecutor had unsuitably argued directly with the defendant instead of speaking or making submissions through the court; and that the prosecutor had inaptly threatened to seek the maximum penalty if the defendant were convicted; and that the prosecutor had improperly asked the defendant to comment on the veracity of prosecution witnesses. As such, the defendant contends that these inappropriate actions by the prosecutor during the trial when the defendant had been unrepresented has irreparably prejudiced the defendant and would cumulatively constitute an abuse of process, which is an infringement of the defendant’s rights under s. 7 of the Charter. Ergo, the defendant submits that the proper remedy under s. 24(1) of the Charter is an order for a stay of proceedings and an order for costs, or at the very least, an order for a new trial, if a stay is not warranted.
3In reply to the defendant’s abuse of process claim, the prosecution submits that the defendant’s application is a personal attack on the prosecution, even though the prosecution submits that at various stages of the trial, the prosecution had taken steps to ensure the defendant received a fair trial by offering assistance to the defendant to get the defendant’s witnesses to attend the trial. Moreover, the prosecution contends that the defendant’s allegations used to support his abuse of process claim are offensive, misplaced, and consists of prosecution statements and submissions that had been taken in isolation, out of context, or mischaracterized. Furthermore, the prosecution contends that the defendant’s application does not even come close to meeting the threshold required for granting a remedy, and that the defendant’s application is only a last minute effort by the defendant to avoid the outcome of the trial on its merits by attempting to have the charges against him stayed.
4But more importantly, trials for regulatory prosecutions, like criminal trials, are not strictly adversarial -- they are still about fairness and finding the truth. As such, prosecutors, as quasi-ministers of justice, are required to treat accused persons fairly and with dignity. At trial, they are not to insult or make sarcastic comments about accused persons, which could prejudice an accused person, since this improper behavior could affect the fairness of the trial and undermine the integrity of the judicial process. Moreover, judicial officers presiding over trials with unrepresented accused are required to maintain their impartiality and ensure the accused receives a fair trial by explaining and guiding unrepresented accused about trial procedure, rules of evidence, and legal principles, without entering into the arena of the adversarial trial. But, where prosecutorial misconduct causes an unfair trial or undermines the integrity of the judicial process then an accused person can seek a remedy under the Charter based on the doctrine of abuse of process.
5In respect to the three charges for this prosecution, the defendant, Paul Broomfield, who had a business doing renovation work for commercial and residential premises, had been hired by three home-owners:
(1) Jay Jairam of 22 Vespahills Crescent in Brampton,
(2) Ahmed Khan of 291 Boon Avenue in Toronto, and
(3) Razeka Bacchus of 94 Narrow Valley Crescent in Brampton,
to do renovation work on their respective homes during a period from August 8, 2011 to July 22, 2014. For the three charges, the prosecution contends that the renovation work included the defendant doing electrical work for which the defendant was neither not legally licensed or authorized to do. In Ontario, the only people or businesses that are legally permitted to do electrical work for the public are licenced electrical contractors. During that period when the defendant was doing renovation work for the three homeowners, the defendant had not been licenced as a journeyperson electrician by the Ontario College of Trades nor licenced by the Electrical Safety Authority (“ESA”) to operate as an electrical contractor in Ontario. The ESA is an agency that operates as the administrative authority under the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A. and is responsible for public electrical safety in Ontario as designated by s. 1 of the Electrical Safety Authority Regulation (Electricity Act, 1998), O. Reg. 89/99. Furthermore, the ESA has the responsibility for enforcing the Ontario Electrical Safety Code, O. Reg. 164/99, the licensing of electrical contractors and master electricians in Ontario, and for conducting electrical inspections for customers whenever an electrician or electrical contractor is doing electrical work that is covered by the Ontario Electrical Safety Code.
6Two of the three homeowners, Jay Jairam of 22 Vespahills Crescent, Brampton and Ahmed Khan of 291 Boon Avenue, Toronto, had contacted the ESA about whether an electrical permit had been taken out for the electrical work that was being done in their respective homes. The defendant had also told both of them that he was an electrician before they had hired him. The ESA then informed both of these two homeowners that no permit had been taken out for their respective houses. The ESA then sent out an ESA inspector to inspect the electrical work that both homeowners had hired and observed the defendant doing in their respective houses. The electrical work that had been done did not pass inspection and the homeowners also learned that the defendant had not been licensed in Ontario to legally do any electrical work.
7The ESA then commenced an investigation into the defendant. During the investigation into the defendant and the electrical work that had been done at 22 Vespahills Crescent, ESA Investigator Gary Corbett was made aware of a third homeowner, Razeka Bachhus, who had also hired the defendant to do renovation work on her house at 94 Narrow Valley Crescent, Brampton. After the ESA had inspected the electrical work done in the respective renovations of 22 Vespahills Crescent, Brampton and 291 Boon Avenue, Toronto, the two homeowners, Jay Jairam and Ahmed Khan, were then required to hire a qualified electrician to redo the electrical work that had been supposedly done by the defendant and for someone to rip down the drywall put up by the defendant in order to redo the electrical work. However, the defendant contends that he did not personally do any of the electrical work that had been done in the three homeowners’ houses during the renovation of those three houses. After an investigation had been conducted by the ESA of the three residential houses where renovation work had been done on the three homeowners’ residences by the defendant, the ESA charged the defendant on November 17, 2014, with committing three offences of “operate an electrical contracting business without holding a valid electrical contractor license”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, and did thereby commit an offence under s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A.
8Now, for the reasons that follow, the defendant has not proven on a balance of probabilities that the conduct of the prosecutor during the trial had been so improper or abusive that it had prejudiced the defendant from having a fair trial, or that it had been so inappropriate that it had undermined the integrity of the judicial process, so that it violated s. 7 of the Charter for an abuse of process. For many of the evidentiary issues raised by the defendant as part of the abuse of process claim, the defendant’s concern had been about the prejudicial effect of evidence adduced from leading questions by the prosecutor from their own witnesses and the elicitation of irrelevant hearsay, bad character, and lay opinion evidence into the trial, has to be viewed in context and in light of the inferences that are being sought, as well as its intended use in the trial. However, any potentially prejudicial effect of the impugned evidence had been lessened in this trial, as this was a non-jury trial, and the charges involved strict liability regulatory offences in which the prosecution can elicit evidence in their case-in-chief to rebut a defence of due diligence or other anticipated defences. And, although the prosecutor’s intemperate comments, immoderate language, and sarcastic tone were not ideal or professional, they certainly had not crossed the line from aggressive to abusive. Moreover, the trier who heard and perceived the impugned comments, language, and tone, in the context of when the comments would have been made and used, would be able to consider their effects on the defendant, their conceivable prejudice to the fairness of the trial and on the outcome of the trial, as well as its potential prejudice to the integrity of the judicial process. In this case, the prosecutor’s comments, language, and tone during the trial did not cause the defendant to receive an unfair trial, nor did it undermine the integrity of the judicial process, since the defendant’s trial was a non-jury trial for which the trier would be cognizant of applying the relevant legal principles and law and would also be able to disabuse and give no weight to any hearsay, bad character, opinion, or any other irrelevant prejudicial evidence, nor put any weight on any inappropriate, sarcastic, or demeaning comments made by the prosecutor about the defendant’s memory, business practices, or personal lifestyle, or to use the impugned evidence or the prosecutor’s comments improperly as proof of guilt. Hence, this trial, like a train, may have been delayed in arriving on schedule, but it has not been derailed by the conduct of the prosecutor. As a result, the abuse of process application is dismissed.
9And, in respect to whether the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus respectively for the three counts, the prosecution has met their burden for two of the three counts. Specifically, the prosecution has proven that the defendant has committed the actus reus for the offence in count #1, which is in respect to Jay Jairam’s house at 22 Vespahills Crescent, Brampton, and the actus reus for the offence in count #2, which is for Ahmed Khan’s house at 291 Boon Avenue, Toronto. However, the prosecution has failed to meet its burden of proving beyond a reasonable doubt that the defendant committed the actus reus for the offence in count #3, which is in respect to Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton. And, in regards to whether the defendant has met his legal burden of proving a defence of due diligence on a balance of probabilities for the two strict liability offences in counts #1 and #2, the defendant has not established that he had taken all reasonable care in the circumstances to avoid committing those two offences or that he had been under a mistaken set of facts, if true, would make his acts or omissions innocent. Accordingly, convictions will be entered against the defendant for counts #1 and #2; while an acquittal will be entered for count #3.
10In addition, the trial of these three charges had commenced on January 25, 2017, and concluded on May 2, 2018. Although the defendant had been given an opportunity to adjourn the first day of trial in order to retain counsel, the defendant decided to go ahead with his trial and represent himself. Over the first 9 days of the 12 days that were set aside or actually held for the trial, the defendant had represented himself. It was only for the last 3 days of the trial that the defendant had been represented by legal counsel.
11The trial had taken a total 12 days of scheduled trial dates to complete and were held on January 25 and 26 of 2017; February 1 and 2 of 2017; June 28 and 29, 2017; September 7, 2017; October 24, 2017, November 1, 2017, November 23, 2017, March 8, 2018, and May 2, 2018. During the trial, 11 witnesses testified: eight for the Crown and three for the defence. The prosecution witnesses were: (1) Jay JAIRAM, owner of 22 Vespahills Crescent in Brampton; (2) Shaun SMITH, inspector for the ESA, who inspected 22 Vespahills Crescent in Brampton; (3) Ahmed KHAN, owner of 291 Boon Avenue, Toronto; (4) Tim BERRY, inspector for the ESA, who inspected 291 Boon Avenue, Toronto; (5) Sean LICHTY, underwriter at Gore Mutual Insurance Company; (6) Razeka BACCHUS, owner of 94 Narrow Valley Crescent in Brampton; (7) Scott EASON, project specialist with the Electrical Contractors Registration Agency of the ESA; and (8) Gary CORBETT, investigator for the ESA. The defence witnesses were: (1) Errol FARQUHARSON; previous owner of 291 Boon Ave, Toronto (2) Ali NABBOUH, an individual who had supposedly been the defendant’s partner in the renovation of 291 Boon Avenue, Toronto; and (3) the defendant.
12After witness testimony was completed on March 8, 2018, the defendant subsequently brought an application on May 2, 2018, for a remedy under s. 24(1) of the Charter for an infringement of the defendant’s rights under s.7 of the Charter for an abuse of process. As well, final submissions on the merits of the three Electricity Act, 1998 charges laid against the defendant were also completed on May 2nd by both the prosecution and the defendant. Judgment was then reserved on the abuse of process application, as well as judgment was reserved on whether the prosecution had proven that the defendant is guilty of committing the three charges beyond a reasonable doubt, and the matter was then adjourned to September 19, 2018, for the ruling on the application and on the judgment to be rendered on the three charges. These, therefore, are the written reasons for both the abuse of process ruling and the judgment on the three charges:
- THE CHARGES
2. THE CHARGES
13The defendant, Paul Broomfield, under a Part III Information numbered 8477 that was sworn on November 17, 2014, has been charged with committing the following three offences under s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, and did thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A:
Count #1
Paul William Broomfield of [municipal address removed for privacy]
Mississauga, Ontario,
between the 1st day of April 2014 and the 22nd day of July 2014 at 22 Vespahills Crescent, Brampton, Ontario, did commit the offence of
did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05, and did thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, R.S.O. 1998, Chapter 15, Schedule A, as amended.
Count #2
Paul William Broomfield of [municipal address removed for privacy]
Mississauga, Ontario,
between the 2nd day of December 2013 and the 30th day of April 2014 at 291 Boon Avenue, Toronto, Ontario, did commit the offence of
did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05, and did thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, R.S.O. 1998, Chapter 15, Schedule A, as amended.
Count #3
Paul William Broomfield of [municipal address removed for privacy]
Mississauga, Ontario,
between the 2nd day of January 2012 [8th day of August 2011 (after prosecution application to amend the start date for this charge granted] and the 31st day of December 2012 at 94 Narrow Valley Crescent, Brampton, Ontario, did commit the offence of
did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05, and did thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, R.S.O. 1998, Chapter 15, Schedule A, as amended.
- BACKGROUND
(A) SUMMARY OF THE FACTS
3. BACKGROUND
14During a period from August 8, 2011 to July 22, 2014, three homeowners had contracted with the defendant, Paul Broomfield, to renovate parts of their respective homes. The three homeowners who had contracted with the defendant were: (1) Jay Jairam of 22 Vespahills Crescent in Brampton, (2) Ahmed Khan of 291 Boon Avenue in Toronto, and (3) Razeka Bacchus of 94 Narrow Valley Crescent in Brampton. As testified to by two of the three homeowners (Jay Jairam and Ahmed Khan), their respective renovation agreements included the defendant doing all of the renovation work, including doing the electrical work. For the other homeowner (Razeka Bacchus), she did not specifically refer to an agreement to do the electrical work, but did testify to the defendant being responsible for installing 16 pot lights with the accompanying switches or dimmers as part of their agreement. But more importantly, during the period in which renovation work was being done on the three homes, the defendant had not been licenced as an electrical contractor by the Electrical Safety Authority (the “ESA”), the body which governs the licensing of electrical contractors in Ontario.
(1) 22 Vespahills Crescent, Brampton
15Jay Jairam had testified that before he had hired the defendant to renovate the basement of his relatively new house, the defendant had told Jairam that the defendant was an electrician. The defendant had commenced the renovation work on Jay Jairam’s house at 22 Vespahills Crescent, Brampton sometime about April 1, 2014, and had stopped or abandoned doing any further work at 22 Vespahills Crescent on July 22, 2014, after ESA inspector Shaun Smith had inspected the electrical work done in the basement of the house at 22 Vespahills Crescent and had ordered the defendant, Paul Broomfield, to stop doing anymore electrical work at that particular house.
16Jairam also said that before the defendant began to renovate the basement of Jairam’s house at 22 Vespahills Crescent, no electrical work had been done to the basement and that Jairam had never hired any electrical contractor to do any electrical work in the basement of his house before he had actually hired the defendant to renovate his basement. In addition, Jairam testified that he had observed the defendant on weekends doing electrical work in the basement of his house at 22 Vespahills Crescent, during the time the defendant had been doing the basement renovation.
17Furthermore, Jairam said that because of conversations with other electricians that Jairam knew, Jairam had become concerned about whether an electrical permit had been taken out for the electrical work being done at his house at 22 Vespahills Crescent. Jairam also said he had asked the defendant about the electrical permit and the defendant had told Jairam not to worry and that Jairam would get the inspection certificate at the end.
18Because of Jairam’s concern about the electrical work being done on his house, Jairam called the ESA on July 18, 2014, to enquire about whether an electrical permit had been taken out for his house at 22 Vespahills Crescent, Brampton. Jairam said that he had been informed by the ESA that no permit for electrical work had been taken out for his house. The ESA then sent out ESA Inspector Shaun Smith to inspect Jairam’s house. When ESA Inspector Smith arrived at 22 Vespahills Crescent on July 21, 2014, ESA Inspector Smith testified that he had entered the basement of the house and had observed the defendant doing work in the basement with another male person, but does not recall seeing the defendant doing any electrical work. ESA Inspector Smith also said that he had asked the defendant for the defendant’s name and for the name of the person who had done the electrical work in the basement of 22 Vespahills Crescent, but the defendant did not provide his full name or the name of the person who had done the electrical work in the basement. ESA Inspector Smith also said he had observed a defect in the electrical work that did not comply with Ontario’s Electrical Safety Code, and which had not been covered up by drywall. In addition, ESA Inspector Smith said that much of the electrical work done in the basement had been covered up by drywall. After the inspection, ESA inspector Smith informed Gary Corbett, the ESA investigator, on July 21, 2014, about the electrical work being done at 22 Vespahills Crescent by someone who may not have been a licenced electrical contractor. In addition, ESA Inspector Smith said that licenced electrical contractors would not have covered up the electrical work with drywall until after the electrical work had passed inspection by the ESA.
19In addition, Jay Jairam had testified that the electrical work that had been done in his basement during the renovation work had not been done properly and had to be redone by a qualified electrician for an additional cost to Jairam. Jairam also said that the drywall that had been put up and covering the wiring as part of the renovation work had to be removed in order that the wiring and electrical work could be redone properly.
20Furthermore, Jairam testified that he had paid about $6,000 to $7,000 in cash to the defendant do the electrical work, and that it cost him and his wife an additional $10,000 to start over again and redo the renovation and to also correct the electrical work done by the defendant.
21In regards to the electrical work that had been done in the basement of 22 Vespahills Crescent, Brampton, ESA Inspector Shaun Smith, testified that he had attended in the basement of that house in July of 2014, which ESA Inspector Smith later acknowledged had been on July 21, 2014. ESA Inspector Smith also said that on that day he had observed the defendant working in the basement with another male person. In addition, ESA Inspector Smith said he had asked the defendant if he had done the electrical work and the defendant had replied, “No”. ESA Inspector Smith then asked the defendant who had done the electrical work, and Smith said that the defendant had replied that he could not remember, but that his electrician did it. ESA Inspector Smith also said that the electrical work that had been done had been covered up, but that Smith did observe some defects that were not Code compliant that had not been covered up by the drywall. Moreover, ESA Inspector Smith described one of the defects as an “open joint”, which meant that there had been a joint or a splice in a wire before the wire had reached an electrical outlet, which was not permitted under the Electrical Safety Code, which requires one continuous wire instead of two wires spliced together before the wire reaches the electrical outlet.
22ESA Inspector Smith also said he had taken a photograph of the licence plate of the motor vehicle that the defendant was driving that day and which had been parked outside of 22 Vespahills Crescent, Brampton, and then forwarded that photograph of the licence plate to ESA Inspector Gary Corbett.
23Moreover, ESA Inspector Smith said that any licenced electrical contractor or electrician would have taken out a permit for any electrical work being done. Smith then said that there had been no permits in the ESA system for 22 Vespahills Crescent, Brampton.
24Furthermore, ESA Inspector Smith said that a permit had been subsequently taken out by a licenced electrical contractor on August 13, 2014, for 22 Vespahills Crescent. Eventually, ESA Inspector Smith said the electrical work done by the licenced electrical contractor passed inspection and Smith said he sent a “Certificate of Inspection” to the licenced electrical contractor.
(2) 291 Boon Avenue, Toronto
25For Ahmed Khan’s house at 291 Boon Avenue, Toronto, Ahmed Khan testified that the defendant had provided Ahmed Khan with a business card with the name of Paul Broomfield under a business name of P & B Construction. The business or style name of P & B Construction had been registered with the Ministry of Government and Consumer Services as a general partnership (see Exhibit 5). Also, the back of the business card indicates that Paul Broomfield or P & B Construction did “Renovations Commercial/Residential, Tiles and Drywall and Electrical”.
26Furthermore, Ahmed Khan had said that he had hired the defendant to do the renovation of his house at 291 Boon Ave. Ahmed Khan and the defendant had entered into a written agreement on March 24, 2013 for the renovation work to be done on the house (see Exhibit 12). However, this written agreement does not specifically mention doing any electrical work, except for removing the electrical as part of the demolition work. On the other hand, Khan testified that the defendant was supposed to do all the electrical work and run new wiring and put new fixtures in for the pot lights.
27Ahmed Khan also testified that the defendant had told Khan that he was an electrician, but had a renovation construction business. In addition, Khan said the defendant had commenced the renovation work at the 291 Boon Avenue house about March 26, 2013, as required by the agreement, and then had stopped or abandoned the renovation job before it had been completed sometime near the end of December of 2013.
28Khan further said that he had observed the defendant doing electrical work in the basement of 291 Boon Avenue in the nature of pulling wire from the main electrical panel in the basement through the joists in the basement and also putting electrical outlets on the studs before the drywall was put up. Moreover, Khan said he recalls being with the defendant for about an hour when the defendant had been pulling wire in the basement while the defendant had been standing in water that was on the basement floor, which made Khan concerned for his and the defendant’s safety while the defendant had been working with electrical wires while standing in a pool of water. Khan also said he had raised the safety concern with the defendant at that time.
29In addition, Khan said the defendant had asked for permission to bring someone in to help the defendant do the electrical work, since the defendant had been falling behind schedule. Khan said he gave his approval and the defendant then brought in a person named Steve Duff to help the defendant do the electrical work. Moreover, Khan said he had observed the defendant and Steve Duff doing electrical work together for about one week and a half in December of 2013, until the defendant had stopped coming to 291 Boon Avenue and Khan had lost contact and communication with the defendant. Khan then said he had to hire Steve Duff’s company, Wiztronic Inc., separately to fix the improper electrical work done in the basement by the defendant and to finish the electrical work for the whole house. Wiztronic Inc. (referring to itself as an “Electrical and Communication Contractor”) then provided Ahmed Khan with an invoice dated January 16, 2014, for a total amount of $1695 for that separate electrical work (see Exhibit 11). Khan also said that he had to himself pay for the parts for the electrical work being done Wiztronic Inc.
30Khan also said that the renovation work agreed to be done for the house at 291 Boon Avenue, Toronto, by the defendant had not been completed by the defendant.
31In addition, Khan said that he had received advice from Paublo Medina, the person who did the drawings for his house at 291 Boon Avenue, to enquire if a permit had been taken out for the electrical work for his house. Khan then said he contacted the ESA (on September 26, 2014) and learned that that no permit to do the electrical work at 291 Boon Avenue, Toronto, had been taken out by the defendant. After an ESA inspector attended 291 Boon Avenue on September 30, 2014, and inspected the electrical work done at 291 Boon Avenue, Khan said the electrical work did not pass inspection and that Khan had to have the drywall taken down and all the electrical work removed and redone by a licenced electrical contractor. Khan also said that he had been informed by the ESA that neither the defendant nor Steve Duff were licenced electricians or licenced electrical contractors in Ontario.
32Furthermore, Khan testified that it had cost him about $7000 to fix and redo the renovation and to hire a licenced electrical contractor to correct the electrical work done by both the defendant and Steve Duff.
(3) 94 Narrow Valley Crescent, Brampton
33As for the house at 94 Narrow Valley Crescent, Brampton, the homeowner, Razeka Bacchus, testified that she had hired the defendant to repair and renovate parts of the main floor of her house that had been damaged and vandalized during a break-in at her house. Bacchus said that her insurance company had given her a cheque for $25,000 to be used for repairing the damage to the inside of her house and that she could hire her own contractor to do the work. Bacchus then hired the defendant on August 8, 2011, to repair and renovate her house for an agreed price of $20,000. The defendant then commenced working on Bacchus’s house, but Bacchus testified that she was not present when the defendant was working in her house. Bacchus also said that the defendant had stopped doing any work on her house at about the end of December of 2012. She also said that the agreed upon work that the defendant was supposed to do for Bacchus was not completed by the defendant.
34But more importantly, Bacchus did not testify that Bacchus and the defendant had specifically agreed that the defendant would do any electrical work in the repair and renovation of Bacchus’s house, but Bacchus did say that the renovation work had included installing 16 pot lights and accompanying light switches. In addition, Bacchus said that it had been Bacchus’s understanding that the defendant would bring in qualified people to do any work that the defendant could not do himself.
35However, Bacchus did not testify to specifically observing the defendant doing any electrical work to her home and had only observed a young man about 22 or 23 years old that had been working with the defendant drilling holes for the pot lights.
36Bacchus also testified that when she uses her dishwasher or microwave when her pot lights are also turned on, the power would go off and she would have to reset her power.
37In addition, Bacchus said that she had to pay another contractor to redo the bathroom floor, but she did not testify about hiring anyone to correct the electrical work that had been done during the renovation of her house by the defendant.
38Furthermore, Bacchus said that she is acquainted with Jay Jairam (the homeowner of 22 Vespahills Crescent, Brampton) because her place of employment is only a few doors away from Jairam’s autobody shop. In addition, Bacchus had acknowledged that she had discussed with Jairam that the renovation work for her house had not been completed by the defendant, which had been similar to what had happened with Jairam’s renovation.
(4) The ESA charges the defendant with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence” on November 17, 2014.
39After ESA Investigator Gary Corbett had interviewed witnesses and completed his investigation into the electrical work done in the three houses, Corbett charged the defendant, Paul Broomfield, on November 17, 2014, with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence” in relation to those three houses. Corbett then personally served the defendant with a summons to appear in court on January 6, 2015, for those three charges.
40The ESA had begun an investigation into the defendant shortly after ESA Inspector Shaun Smith inspected Jay Jairam’s house at 22 Vespahills Crescent, Brampton, on July 21, 2014. During ESA Investigator Gary Corbett’s investigation of 22 Vespahills Crescent, Corbett said he had received information that the defendant may have also done electrical work at Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton. Therefore, the ESA would have only first learned about the defendant’s renovation work at 94 Narrow Valley Crescent as early as July 21, 2014, which is within the two-year limitation period for commencing charges against the defendant when the information was sworn on November 17, 2014, in respect to the defendant’s alleged electrical work done at 94 Narrow Valley Crescent, sometime between August 11, 2011 to December 31, 2012. The two-year limitation period for laying this specific charge set out in count #3 against the defendant only starts at the time when the facts that gave rise to the alleged offence first come to the attention of the Director of the ESA. In this case the earliest date that the Director could have been aware of the facts that gave rise to the alleged offence in relation to Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton, would have been on July 21, 2014.
41Moreover, it had been only on September 26, 2014, that Ahmed Khan had enquired about whether an electrical permit for the electrical work that had been done at 291 Boon Avenue, Toronto, had been taken out by the defendant, for which Khan had been informed by the ESA that no permit had been taken out by the defendant. In addition, Khan had also learned shortly after that inquiry to the ESA that neither the defendant nor Steve Duff had been licensed in Ontario to do electrical work as an electrical contractor.
42In addition, ESA Investigator Gary Corbett said that he had charged both Steve Duff and Steve Duff’s company, Wiztronic Inc., for “operating an electrical contracting business without holding a valid electrical contractor licence” in respect to the electrical work Steve Duff had done at 291 Boon Avenue, Toronto. For those particular charges, Corbett testified that the company Wiztronic Inc. had pled guilty to the charge and that the charge against Steve Duff had been withdrawn by the prosecution.
(B) HISTORY OF THE PROCEEDINGS
History of the Proceedings
43The information charging the defendant, Paul Broomfield, with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, thereby allegedly committing an offence under s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A, had been sworn and laid on November 17, 2014. A summons was then issued and served on the defendant, ordering the defendant to appear in court on January 6, 2015, to answer to the three charges.
44On January 6, 2015, the defendant appeared as required and was provided with initial disclosure. The matter was then adjourned to March 3, 2015, to be spoken to. On March 3rd, the defendant appeared and was provided with further disclosure. The defendant then informed the court that he had approached someone named “B. Bernardo” to be his legal representative. The matter was then adjourned to April 7, 2015. The defendant on the March 3rd appearance was also informed by the court that on the April 7th appearance date the defendant had to bring a letter from his legal representative indicating that they had been retained.
45On April 7, 2015, the defendant appeared with Michael Mahadeo, a legal representative, who was not yet retained by the defendant. The matter was then adjourned to May 5, 2015, to be spoken to, for retainer purposes. On May 5, 2015, Michael Mahadeo appeared for the defendant and informed the court that the defendant had still not yet retained Mahadeo. The matter was then again adjourned to June 2, 2015, for retainer purposes.
46On June 2, 2015, Michael Mahadeo appeared again for the defendant and informed the court that he was still not retained by the defendant. The matter was once again adjourned for retainer purposes to July 7, 2015. On July 7, 2015, Michael Mahadeo appeared for the defendant and once more informed the court that he was still not retained. The matter was then adjourned to August 4, 2015. On August 4th, both the defendant and Michael Mahadeo appeared. The matter was then adjourned to September 1, 2015, for ongoing and continuing resolution discussions. On September 1st, Michael Mahadeo again appeared for the defendant. The matter was then adjourned to November 3, 2015, for either setting a JPT, setting a trial date, or for resolving. On November 3, 2015, both the defendant and Michael Mahadeo appeared. The matter was then set for a JPT to be held on January 12, 2016, over one year after the defendant’s first appearance. On January 12, 2016, both the defendant and Michael Mahadeo appeared for the JPT. The matter was then adjourned to March 8, 2016, to set a four-day trial. On March 8, 2016, Michael Mahadeo appeared once again for the defendant and the matter was set down for trial with four dates selected as September 14, 15, 21, 22, 2016. A confirmation date was also set for August 9, 2016. On August 9th, legal representative, A. Dhir, appeared for Michael Mahadeo and four new trial dates were set for the four-day trial consisting of January 25 and 26 and February 1 and 2, 2017. A second JPT was also set for November 22, 2016.
47On the November 22nd second JPT date, the four trial dates commencing on January 25, 2017, were confirmed by the defendant’s legal representative Michael Mahadeo.
48On the first trial date of January 25, 2017, the defendant appeared and informed the court that Michael Mahadeo would not be representing him as the defendant could not afford the retainer. The defendant was then asked if he was ready to proceed with the trial and the defendant said that he was. Moreover, the defendant on the first day of the trial did not request an adjournment in order to hire a legal representative. The trial then finally began with the defendant representing himself, some 26 months and one week after the information had been sworn on November 17, 2014. The defendant was then arraigned on the three charges, to which the defendant had entered not guilty pleas.
49On the first day of the trial of January 25, 2017, 4 prosecution witnesses, Jay Jairam, Shaun Smith, Ahmad Khan, and Timothy Berry, testified.
50On the second day of the trial held on January 26, 2017, 4 prosecution witnesses, Sean Lichty, Razeka Bacchus, Scott Eason, and Gary Corbett testified. During the testimony of Sean Lichty of Gore Mutual Insurance, the defendant had informed the court that he wanted to testify on the liability insurance number issue and had been permitted to testify out of order on only that specific issue, for reason of expediency and trial management to accommodate the prosecution not having to recall Sean Lichty to testify on another day for the purposes of rebuttal in respect to any issue raised by the defendant’s testimony in respect to the liability insurance number issue. After the defendant had testified and been cross-examined by the prosecution on only that specific issue, the prosecution did not recall Sean Lichty to provide rebuttal evidence.
51On the third actual day of the trial of February 1, 2017, after ESA Investigator Gary Corbett had completed his testimony, the prosecution closed its case. The defendant then began his defence and called as his first witness, Gary Corbett, the ESA investigator. Also, on February 1st, Errol Farquharson and the defendant himself testified for the defence. The defendant began his testimony that day but did not complete his testimony on February 1st. The third trial day was then adjourned to February 2, 2017, for the cross-examination of the defendant by the prosecution.
52On the 4th day of the trial of February 2, 2017, the prosecution’s cross-examination of the defendant did not begin immediately as the defendant sought an adjournment. After submissions were heard from both parties in respect to the defendant’s application for an adjournment, the adjournment was not granted. The defendant in his application stated that he had been trying to contact a person named Ali Nabbouh to be a witness for the defence, but had been unsuccessful. Later, on February 2nd, Ali Nabbouh, a person that the defendant had mentioned in his testimony was present in the courtroom. Nabbouh had been contacted by Gary Corbett, the ESA investigator, on the morning of February 2nd and Nabbouh had agreed to attend later that day to testify. Ali Nabbouh arrived later on February 2nd and was allowed to testify as a defence witness about whether he had been a partner or intending to go into a partnership with the defendant on the 291 Boon Avenue, Toronto house renovation and whether Nabbouh had actually provided to the defendant the WSIB number and the liability insurance policy number written on a piece of paper entered as Exhibit 7. After Nabbouh’s testimony was completed, the prosecution began its cross-examination of the defendant. However, the prosecution’s cross-examination could not be completed on February 2nd. The trial was then adjourned to June 28, 2017, at 9:00 a.m., for the continuation of the prosecution’s cross-examination of the defendant
53On the scheduled 5th day of the trial of June 28, 2017, the defendant did not appear at 9:00 a.m. ESA Investigator Gary Corbett informed the court that Corbett had left a voice mail on the defendant’s telephone number to remind the defendant of the trial continuation that was to be held on June 28th. The court waited for the defendant to appear that morning of June 28th, but since the defendant did not appear a bench summons was then issued to the defendant at 11:31 a.m., ordering the defendant to appear on June 29, 2017, at 9:00 a.m. for the continuation of the defendant’s trial. Gary Corbett, the ESA Investigator, agreed to serve the summons on the defendant. Later that day on June 28th, after counsel for the prosecution had already left the courthouse, the defendant arrived late at the courthouse having received Corbett’s voice message. The defendant was then informed by the court on what had occurred that morning and that the defendant had to appear the next day on June 29th for the continuation of his trial.
54On the 6th scheduled day of the trial of June 29, 2017, before the defendant’s trial resumed, the defendant brought an application to adjourn his trial so that he could hire legal counsel. The defendant's application for an adjournment was granted. Two additional trial days were then scheduled for November 1 and 2, 2017, with a confirmation date of readiness scheduled for September 7, 2017. The defendant was also informed that he would have to order transcripts of the witness testimony already given in the trial for the legal counsel that the defendant was intending to retain.
55On the September 7, 2017, confirmation date (the 7th date), the defendant did not appear at the scheduled time of 9:00 a.m. Counsel for the ESA then informed the court that they had not been contacted by counsel for the defendant or by the defendant in respect to the continuation of the trial. The November 1 and 2, 2017, trial dates were then confirmed and counsel for the ESA were excused. After counsel for the prosecution left the courthouse, the defendant then arrived late at 9:37 a.m. without counsel. The defendant then informed the court that he had retained the Mahadeo law firm, which was the same “Michael Mahadeo” that had been appearing and representing the defendant before the defendant’s trial had commenced. The defendant was then instructed that the defendant’s trial would commence again on November 1, 2017, and that the November 1 and 2, 2017, trial dates were confirmed.
56The defendant then brought an application on October 24, 2017 (the 8th date), to adjourn the November 1 and 2, 2017, trial dates, citing that the transcripts in respect to the previous trial dates were not ready. However, the defendant had only ordered the transcripts on September 29, 2017, which was nearly 3 months after the defendant’s last appearance on June 29, 2017, when the defendant’s application to adjourn his trial to hire legal counsel had been granted. The defendant also informed the court that he had retained Michael Mahadeo, but did not have a letter from Mahadeo that Mahadeo had been retained and reasons why Mahadeo would not be available on November 1 and 2, 2017, for the recommencement of the defendant’s trial. Michael Mahadeo was then contacted by the court by speaker phone in the courtroom and was informed by Mahadeo that he had not been retained by the defendant and that he would not be able to represent the defendant without transcripts. After further arguments were made on the defendant’s adjournment application, the defendant’s application was not granted and that the defendant was informed that defendant’s trial would commence again on November 1 and 2, 2017.
57On November 1, 2017 (the 9th date), the defendant appeared by himself and brought another application to adjourn his trial and provided a letter from legal counsel, David North, which indicated that David North has been retained by the defendant, but was not available on November 1 and 2, 2017, because of counsel’s previous commitments. After arguments were heard on this particular adjournment application, the defendant’s application to adjourn the trial was granted and the November 1 and 2, 2017, trial dates were vacated. The matter was then adjourned to November 23, 2017, to set new dates to continue with the trial.
58On November 23, 2017 (the 10th date), legal counsel, David North appeared with the defendant and the dates of March 8, 2018 and April 25, 2018, were agreed upon for the continuation of the trial. Counsel for the defendant also expressly waived s. 11(b) from November 23, 2017 to the next trial dates. In addition, counsel for the defendant then subsequently asked the trial coordinator to change the April 25, 2018 trial date because of a conflict and that date was then changed by the trial coordinator to May 2, 2018.
59On March, 8, 2018 (the 11th date), the defendant’s trial proceeded with the continuation of the cross-examination of the defendant by the prosecution. The last day that testimony had been given in the defendant’s trial had been on February 2, 2017, which had been 13 months earlier. The cross-examination of the defendant by the prosecution was then completed on March 8, 2018. The trial was then adjourned until May 2, 2018, for potential re-examination of the defendant and final submissions.
60However, on April 5, 2018, the defendant served the prosecution and the court, with notice of the abuse of process application that would be brought on May 2, 2018.
61The abuse of process application was then argued on May 2, 2018 (the 12th date). After arguments on the abuse of process application were heard, ruling on the application was reserved. Final submissions were then heard on whether the prosecution had proven that the defendant had committed the three charges beyond a reasonable doubt. Judgment on the three charges was also reserved. The matter was then adjourned to September 19, 2018, for the ruling on the abuse of process application and judgment, if necessary, on the three charges.
- APPLICABLE LAW
4. APPLICABLE LAW
62The defendant has been charged with committing three strict liability regulatory offences of operating an electrical contracting business in respect to three separate residences without having a valid electrical contractor license, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, which would be an offence under s. 113.20(1)(d) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A. Section 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation prohibits a person from operating an electrical contracting business in Ontario without having an electrical contractor license that has been issued by the Electrical Safety Authority of Ontario (“ESA”):
Licence required, electrical contractor
3.No person shall operate an electrical contracting business without an electrical contractor licence issued under this Regulation.
63In respect to the s. 113.20(1)(d) offence under the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, that provision states that a person is guilty of committing an offence if the person contravenes or fails to comply with subsection 113.2(1) of the Electricity Act, 1998. The penalty which could be imposed on the defendant if convicted of committing an offence under s. 113.20(1)(d) of the Electricity Act, 1998 is a maximum fine of $50,000 or to a period of imprisonment of not more than one year or to both a fine and a period of imprisonment [emphasis is mine below]:
Offences
113.20(1) Every person,
(d) that contravenes or fails to comply with subsection 113.2(1) is guilty of an offence and on conviction is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both, and a further fine of not more than $5,000 for each day upon which the offence is repeated or continued;
64Subsection 113.2(1) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, states that no person shall carry out or propose to carry out, or permit or employ another person to carry out, except as provided in the regulations, an activity referred to in the regulations (such as operating an electrical contracting business in Ontario), which legally requires an authorization without having first obtained an authorization for that activity in accordance with that particular Part of the Electricity Act, 1998 and the regulations [emphasis is mine below]:
Authorization
113.2(1) Except as provided in the regulations, no person shall carry out or propose to carry out, or permit or employ another person to carry out, an activity referred to in the regulations as requiring an authorization without first obtaining an authorization in accordance with this Part and the regulations.
65More importantly, according to s. 113.20(7) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, a proceeding to prosecute someone for committing an offence under s. 113.20(1)(d), has to be commenced before two years following the date on which the facts that gave rise to the alleged offence first came to the attention of the Director [emphasis is mine below]:
113.20(7) No proceeding in respect of an alleged offence under this Part may be commenced after two years following the date on which the facts that gave rise to the alleged offence first came to the attention of the Director.
66However, s. 2 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, does provide for an exception to the requirement to obtain an electrical contractor license for operating an electrical contracting business in Ontario for doing electrical work and sets out the situations in which an electrical contractor licence is not legally required:
Non-application of regulation
This Regulation does not apply to a person engaged in the following types of electrical work:
Work done on original equipment of a manufacturer if done by an employee or agent of the original equipment manufacturer who has been trained by the manufacturer to perform maintenance, service or repair on the equipment and if the work being done does not include extending or altering the equipment or installing, extending, altering or repairing any electrical wiring connected to that equipment.
Work done on equipment or electrical installations within an industrial establishment or on a farm if done by an owner, an operator or an employee of the owner or operator.
Work done on electrical equipment or installations within a residential dwelling if done by an owner or occupant of the dwelling.
Work done within the scope of practice for the trade of refrigeration and air conditioning systems mechanic or residential air conditioning systems mechanic by a person authorized under the Ontario College of Trades and Apprenticeship Act, 2009 to practise the applicable trade.
Work done within the scope of practice for the trade of sprinkler and fire protection installer by a person authorized under the Ontario College of Trades and Apprenticeship Act, 2009 to practise that trade.
Work done on elevators and escalators by a person authorized to do such work under Ontario Regulation 209/01 (Elevating Devices) made under the Technical Standards and Safety Act, 2000.
Work done on electrical components of appliances by a person authorized to do such work under Ontario Regulation 210/01 (Oil and Gas Pipeline Systems), Ontario Regulation 211/01 (Propane Storage and Handling) and Ontario Regulation 215/01 (Fuel Industry Certificates) made under the Technical Standards and Safety Act, 2000.
Work done on electrical equipment that plugs into an electrical source if the work being done constitutes maintenance, service or repair of the equipment that does not include extending or altering the equipment or installing, extending, altering or repairing any electrical wiring connected to that equipment.
Work done that falls within the scope of Ontario Regulation 22/04 (Electrical Distribution Safety) made under the Electricity Act, 1998.
Work done on any electrical equipment or electrical installation that is specifically excluded by Rule 2-000 of the Electrical Safety Code.
67The exclusion mentioned in s. 2(10) of the Licensing Of Electrical Contractors And Master Electricians Regulation refers to work done on any electrical equipment or electrical installation that is specifically excluded by Rule 2-000 of the Ontario Electrical Safety Code (Electricity Act, 1998), o. reg. 164/99. Rule 2-000 refers to the Ontario Electrical Safety Code not applying to the following, which includes for example: electrical equipment and electrical installations used exclusively in the generation, transmission, or distribution of electrical power or energy intended for sale or distribution to the public; electrical equipment and electrical installations in communication systems; electrical equipment and electrical installations used in the operation of an electric railway or electric street railway; electrical equipment and electrical installations in railway locomotives; electrical equipment and electrical installations in an aircraft; and electrical equipment and electrical installations in a mine:
Section 2 — General Rules
Administrative
2-000 Scope (see Appendix B)
This Code does not apply to
(a) electrical equipment and electrical installations used exclusively in the generation, transmission, or distribution of electrical power or energy intended for sale or distribution to the public as specified in Item (i), (ii), or (iii), except where the Ontario Energy Board require an authorization to connect from the inspection department in accordance with Part V of the Ontario Energy Board Act, 1998:
(i) the distributor is licensed to own or operate the distribution system under Part V of the Ontario Energy Board Act, 1998;
(ii) the transmitter is licensed to own or operate the transmission system under Part V of the Ontario Energy Board Act, 1998; or
(iii) the generator is licensed to own or operate the generation system or is licensed to provide ancillary services for sale through the IESO-administered markets or directly to another person, under Part V of the Ontario Energy Board Act, 1998;
(b) electrical equipment and electrical installations in communication systems from the transformer or other current limit in device used at the junction of the communication system with the electric circuit supplying the communication system;
(c) electrical equipment and electrical installations in the cars, car-houses, passenger stations, or freight stations used in the operation of an electric railway or electric street railway and supplied with electric current from the railway power-circuit;
(d) electrical equipment and electrical installations in railway locomotives, railway cars, signalling systems, communication systems, wayside train monitoring systems, and track facilities including the branch circuit supplying such electrical equipment or electrical installations when such electrical equipment or electrical installation is used in the operation of a railway;
(e) electrical equipment and electrical installations in an aircraft;
(f) electrical equipment and electrical installations in a mine as defined in the Mining Act, excluding any dwelling house or other building not connected with, or required for, mining operations or purposes or used for the treatment of ore or mineral;
(g) electrical equipment and electrical installations on a vessel of non-Canadian registry or on a vessel that is required to be certified in accordance with the Canada Shipping Act except for such equipment and installations required to connect the electrical supply from the onshore electrical supply facility to the service box on the boat and including the service box; or
(h) electrical equipment forming an integral part of a self-propelled vehicle that is required to be certified in accordance with the Motor Vehicle Safety Act except for such equipment supplying electrical power from an electrical installation to the vehicle and those portions of a vehicle capable of receiving electrical power from an electrical installation.
Section 2
Add Appendix B Note to Rules 2-000(a) and (h) as follows:
Rule 2-000(a)
Where Codes issued by the Ontario Energy Board under Part V of the Ontario Energy Board Act, 1998, require a connection authorization, this Code applies to electrical installations specified in Item (a). Codes issued by the Ontario Energy Board can be referenced on the Ontario Energy Board website.
Rule 2-000(h)
For electrical vehicles, this Code applies to electrical vehicle supply equipment and requires it to be approved and installed in accordance with applicable Code requirements. This Code does not apply to the inlet or on-board charging equipment as defined by Rule 86-100 that does not provide bi-directional power feed, as specified by Rule 86-308.
The on-board charging equipment is considered to be part of the vehicle and not part of the electrical vehicle supply equipment
68In addition, the purpose of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, is stated in s. 1 of that Act. As it relates to consumers, s. 1(f) states that the Electricity Act, 1998 is intended to protect the interests of consumers with respect to prices and the adequacy, reliability and quality of electricity service [emphasis is mine below]:
Purposes
- The purposes of this Act are,
(a) to ensure the adequacy, safety, sustainability and reliability of electricity supply in Ontario through responsible planning and management of electricity resources, supply and demand;
(b) to encourage electricity conservation and the efficient use of electricity in a manner consistent with the policies of the Government of Ontario;
(c) to facilitate load management in a manner consistent with the policies of the Government of Ontario;
(d) to promote the use of cleaner energy sources and technologies, including alternative energy sources and renewable energy sources, in a manner consistent with the policies of the Government of Ontario;
(e) to provide generators, retailers and consumers with non-discriminatory access to transmission and distribution systems in Ontario;
(f) to protect the interests of consumers with respect to prices and the adequacy, reliability and quality of electricity service;
(g) to promote economic efficiency and sustainability in the generation, transmission, distribution and sale of electricity;
(h) to ensure that Ontario Hydro’s debt is repaid in a prudent manner and that the burden of debt repayment is fairly distributed;
(i) to facilitate the maintenance of a financially viable electricity industry; and
(j) to protect corridor land so that it remains available for uses that benefit the public, while recognizing the primacy of transmission uses.
69Furthermore, under s. 1(1) of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, the following definitions are relevant to this proceeding [emphasis is mine below]:
Definitions
1(1) In this Regulation,
“electrical contractor” means a person who is licensed to operate an electrical contracting business under this Regulation;
“electrical equipment” means any apparatus, appliance, device, instrument, fitting, fixture, machinery, material or thing used in or for, or capable of being used in or for, the generation, transformation, transmission, distribution, supply or utilization of electric power or energy, and, without restricting the generality of the foregoing, includes any assemblage or combination of materials or things which is used, or is capable of being used or adapted, to serve or perform any particular purpose or function when connected to an electrical installation, notwithstanding that any of such materials or things may be mechanical, metallic or non-electric in origin;
“electrical installation” means the installation of any wiring in or upon any land, building or premises from the point or points where electric power or energy can be supplied from any source to the point or points where such power or energy can be used in or on the land, building or premises by any electrical equipment, including the connection of any such wiring with any of that equipment, and any part of the wiring, and the maintenance, alteration, extension and repair of such wiring;
“electrical work” means work within the scope of the Electrical Safety Code that consists of constructing, installing, protecting, maintaining, repairing, extending, altering, connecting or disconnecting any electrical installation or electrical equipment;
(2) The use in this Regulation of “employ” and “employee” refers to the employer-employee relationship and not to an arrangement whereby a person engages an independent contractor to work on the person’s behalf.
70In addition, ss. 113.13(4)(b), 113.13(6) and 113.13(7) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, provides that an ESA inspector may “require a person on the premises being inspected to produce a document, record or other thing that is relevant to the inspection“, and such person that is required to “produce a document, record, electrical product or device, or other thing under clause (4)(b) shall produce it, and shall, on request by the inspector, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce information or a record that is relevant to the inspection and that is in any form [emphasis is mine below]:
Inspections
113.13(1) The Authority or a person appointed as an inspector in writing by the Authority may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time any land or premises, including the business premises of an authorization holder, for the purpose of,
(a) ensuring compliance with this Act and the regulations; or
(b) determining that the authorization holder remains entitled to the authorization.
Limitations on power to enter
(2) An inspector shall not,
(a) use force to enter and inspect land and premises under this section; or
(b) enter any part of premises that are being used as a dwelling, except with the consent of the owner or occupier.
Identification
(3) An inspector shall produce, on request, evidence of his or her appointment as an inspector.
Powers on inspection
(4) An inspector conducting an inspection on any land or in any premises, including premises of an authorization holder, may,
(a) examine all documents, records, electrical products, devices and other things that are relevant to the inspection;
(b) require a person on the premises being inspected to produce a document, record or other thing that is relevant to the inspection;
(c) use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or a record that is relevant to the inspection and that is in any form; and
(d) subject to subsection (5), on giving a receipt for it, remove any thing relevant to the inspection, including a document, a record, a data storage disk or a retrieval device needed to produce information.
Electrical product not included
(5) An electrical product or device may not be removed under clause (4) (d).
Obligation to produce and assist
(6) A person who is required to produce a document, record, electrical product or device, or other thing under clause (4)(b) shall produce it and shall, on request by the inspector, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce information or a record that is relevant to the inspection and that is in any form.
Obstruction prohibited
(7) No person shall obstruct an inspector executing his or her duties or withhold from him or her or conceal, alter or destroy any document, record, electrical product or device or other thing that is relevant to the inspection.
Copy and return of removed things
(8) An inspector who removes any document, record or other thing under clause (4) (d) may make a copy of it and shall promptly return it to the person being inspected.
Admissibility of copies
(9) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.
- ISSUES
5. ISSUES
71The following issues have arisen in this proceeding and need to be resolved:
(1) Whether the prosecution’s application to amend the start date for the alleged offence in count #3 from “January 2, 2012” to “April 8, 2011” should be granted?
(2) Has the defendant proven on a balance of probabilities that there has been an abuse of process based on prosecutorial misconduct which violates s. 7 of the Charter?
(3) Has the defendant proven on a balance of probabilities there has been prosecutorial misconduct in the trial which prejudices the fairness of the trial or undermines the integrity of the judicial process?
(4) If the defendant has proven on a balance of probabilities that there has been an abuse of process based on prosecutorial misconduct, which violates s. 7 of the Charter, then what is the appropriate remedy under s. 24(1)?
(5) If the abuse of process claim has not been established by the defendant, then has the prosecution proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of “operating an electrical contracting business without holding a valid electrical contractor licence” in respect to each of the three residences in question, set out in s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05?
(6) What activity would constitute doing electrical work that would require an electrical contractor’s licence under s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05?
(7) If the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of “operating an electrical contracting business without holding a valid electrical contractor licence” in respect to each of the three residences in question, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, then has the defendant proven on a balance of probabilities that he had taken all reasonable care for the circumstances to avoid committing the respective offences or that he had reasonably believed in a mistaken fact, if true, would make his actions or omissions innocent, which would entitle him to an acquittal for all three charges?
- ANALYSIS AND DECISION
6. ANALYSIS AND DECISION
72In order to decide this case, it will first have to be decided if the prosecution’s application should be granted under s. 34 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“P.O.A.”), to amend the third count on the information, to change the start date of the alleged offence from “January 2, 2012” to “August 8, 2011”.
73After the prosecution’s application to amend count #3 is decided, then it will have to be determined if the defendant has proven on a balance of probabilities that s. 7 of the Charter has been infringed for an abuse of process based on prosecutorial misconduct. If the defendant proves on a balance of probabilities that there has been an abuse of process which violates s. 7, then it has to be decided what the appropriate remedy under s. 24(1) should be to remedy the abuse of process.
74On the other hand, if the defendant does not prove on a balance of probabilities that s. 7 has been infringed for an abuse of process based on prosecutorial misconduct, then it will have to be decided whether the prosecution has proven that the defendant has committed the actus reus of the offence of “operating an electrical contracting business without holding a valid electrical contractor licence” beyond a reasonable doubt in respect to the three counts. If the prosecution meets its onus, then it will have to be decided if the defendant has met its burden in proving the defence of due diligence on a balance of probabilities for each of the three counts in order for the defendant to be acquitted of the three charges.
(A) PROSECUTION’S APPLICATION TO AMEND THE START DATE FOR THE CHARGE IN COUNT #3
Prosecution’s Application to Amend the Start Date for the Charge in Count #3
75At the start of the trial, before any testimony or evidence had been entered, the prosecution brought an application to amend the start date for the alleged offence set out in count #3 from “January 2, 2012” to “August 8, 2011”. The decision whether to grant this decision was reserved until the evidence for this particular charge was complete.
76The statutory power to make amendments to an information is set out in s. 34 of the Provincial Offences Act, R.S.O. 1990, c. P.33. (P.O.A.), which is the procedural statute that governs regulatory proceedings in Ontario. Section 34 provides that the court may at any stage of the proceeding amend the information as may be necessary, if it appears that the information fails to state or states defectively anything that is requisite to charge the offence, is in any way defective in substance or in form, or if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial. But, in considering whether or not an amendment should be made, consideration of the evidence taken on the trial, the circumstances of the case, whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission, and whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done [emphasis is mine below]:
Amendment of information or certificate
34(1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,
(a) fails to state or states defectively anything that is requisite to charge the offence;
(b) does not negative an exception that should be negatived; or
(c) is in any way defective in substance or in form.
Idem
(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.
Variances between charge and evidence
(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,
(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or
(b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.
Considerations on amendment
(4) The court shall, in considering whether or not an amendment should be made, consider,
(a) the evidence taken on the trial, if any;
(b) the circumstances of the case;
(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
Amendment, question of law
(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law.
Endorsement of order to amend
(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended.
77The charge in count #3 is in respect to Razeka Bacchus’s house at 94 Narrow Valley Crescent in Brampton. The evidence presented by the prosecution indicates that the agreement between the defendant and Razeka Bacchus to repair and renovate the Bacchus house would have commenced at least on August 8, 2011, after Bacchus had provided the defendant with a cheque for $20,000 that was dated August 8, 2011 (see Exhibit 16) for that renovation work. As such, the defendant would not have been misled or prejudiced in regards to the defendant’s defence by the proposed amendment to change the start date of the alleged offence from “January 2, 2012” to “August 8, 2011”, nor would there be injustice if the proposed amendment were to be made in regards to the merits of the case, as the defendant himself would have known that he had received a cheque from Razeka Bacchus with a particular date, as well as a copy of the $20,000 cheque had been disclosed to the defendant in the prosecution’s disclosure prior to the trial commencing. In addition, the issue of the proposed amendment to count #3 had been also raised at the judicial pre-trial conference when the defendant had been represented by Michael Mahadeo, so that the defendant would not have been surprised about the application by the prosecution for that proposed amendment.
78As such, the prosecution’s application to amend count #3 from the start date of “January 2, 2012”, with the start date of “August 8, 2011”, is granted.
(B) THE ABUSE OF PROCESS APPLICATION
(1) The Position Of The Parties
(a) The defendant’s position
The Abuse of Process Application
[79] For the abuse of process application, the defendant alleges that during the trial when the defendant was unrepresented, the prosecutor had engaged in egregious misconduct, which has caused prejudice to the defendant which has resulted in unfair trial, as well as causing prejudice to the integrity of the judicial process. As such, the defendant submits that his s. 7 Charter rights have been infringed for an abuse of process and seeks, as an appropriate remedy under s. 24(1), a stay of proceedings or, at the very least, a new trial. In addition, the defendant also seeks an additional remedy of an order for costs against the prosecution.
80The defendant further submits that it is not only the improprieties in the cross-examination of the defendant that has resulted in serious prejudice, but also the improprieties during the presentation of the Crown’s case that has compromised and undermined the fairness of the defendant’s trial.
81Moreover, the defendant contends that the indecorous conduct of the prosecutor in the course of the defendant’s trial when the defendant was unrepresented has irreparably compromised the fairness of the trial, as well as undermining the integrity of the judicial process. The defendant further submits that the impugned conduct of the prosecutor, which forms the basis for the abuse of process includes: (1) the prosecutor making mocking, demeaning, and sarcastic commentary towards the defendant regarding the defendant’s memory, in the defendant forgetting his eyeglasses, and in the defendant’s difficulty in recalling events; (2) the prosecutor providing personal opinions and editorial commentary about the credibility of the defendant and the believability of the defendant’s defence; (3) the prosecutor giving evidence in the trial; (4) the prosecutor eliciting evidence from his witnesses using leading questions, as well as the prosecutor eliciting damaging and improper opinion, hearsay, irrelevant, and bad character evidence from prosecution witnesses; (5) the prosecutor questioning the defendant on his lack of cooperation with ESA inspectors and investigators and the defendant’s failure to assert his innocence when confronted by ESA inspectors; (6) the prosecutor questioning the defendant on his relationship with his counsel, including the contents of their communications; (7) the prosecutor repeatedly asking the defendant to comment on the veracity of prosecution witnesses; (8) the prosecutor presenting evidence of the defendant’s questionable lifestyle and associations with unsavory persons; (9) the prosecutor arguing with the defendant directly rather than speaking or making submissions through the Court; (10) the prosecutor grilling the defendant on the witnesses he intended to call and the defendant’s efforts to get those witnesses to appear in court; and (11) the prosecutor threatening to request the maximum penalty available for the defendant for arbitrary reasons.
82And, because this prosecutorial misconduct has prejudiced the defendant by causing an unfair trial, as well as contravening fundamental notions of justice which would undermine the integrity of the judicial process, then the defendant submits that his s. 7 rights have been violated for abuse of process and that the appropriate remedy under s. 24(1) of the Charter is a stay of proceedings, or at least a new trial if a stay is not appropriate. In addition, the defendant also seeks as a remedy, an order for costs against the prosecution, which has been recognized as an appropriate remedy for in infringement of the Charter: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] S.C.J. No. 79 (S.C.C.).
(b) The prosecution’s position
The Prosecution's Position
83The prosecution, on the other hand, submits that the present prosecution is under public welfare legislation and not under the Criminal Code of Canada, and that the defendant’s trial was a non-jury trial. Moreover, the prosecution submits there is also a relevant factor to consider when determining if there has been an abuse of process based on prosecutorial misconduct, is that there is a duty to cooperate with ESA inspectors under the Electricity Act, 1998, the governing legislation.
84Furthermore, the prosecution submits that in deciding whether the prosecutor’s conduct during the trial amounts to an abuse of process requires a contextual analysis. In addition, the prosecution submits that the defendant has taken comments of the prosecutor made during the trial completely out of context and without any recognition of what was occurring at the time. In addition, the prosecution submits that the defendant’s abuse of process application contains colour and emotive adjectives to the defendant’s allegations, which are clearly wrong, inappropriate, and offensive.
85In addition, the prosecution submits that the defendant has to reach a high bar in order to make out an abuse of process claim. And, even though the defendant is relying on the cumulative effect of the prosecutor’s conduct during the trial, the prosecution contends the defendant has failed to point to one or two things that reek of unfairness. On the other hand, the prosecution submits that the prosecutor and the court had gone out of their way to allow the defendant to have adjournments in order to contact and get witnesses. Moreover, the prosecution submits that the cross-examination of the defendant had not been unfair or improper, nor had it gone from aggressive to abusive, and that some sarcasm in cross-examination is not unreasonable.
86Therefore, the prosecution contends that there had been no prosecutorial conduct that would have caused an unfair trial or that would have undermined the integrity of the judicial process, and that the defendant is only making a last-minute attempt to avoid the consequences of an outcome on the merits of the case by having his charges stayed.
(2) The Abuse of Process Doctrine
The Abuse of Process Doctrine
87As it had been identified by L'Heureux-Dubé J. in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.), at paras. 72 to 75, there are two categories of abuse of process which are caught by s. 7 of the Charter, namely: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. In addition, L'Heureux-Dubé, J. held that a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. Furthermore, L'Heureux-Dubé, J. held that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed, as the focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial [emphasis is mine below]:
I therefore propose to set down some guidelines for evaluating, first, whether there has been a violation of the Charter that invokes concerns analogous to those traditionally raised under the doctrine of abuse of process and, second, the circumstances under which the remedy of a judicial stay of proceedings will be "appropriate and just", as required by s. 24(1) of the Charter.
As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
… I would note, moreover, that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found.
Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the power to confer "such remedy as the court considers appropriate and just in the circumstances". Professor Paciocco, supra, at p. 341, has recommended that a stay of proceedings will only be appropriate when two criteria are fulfilled:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the integrity of the judicial system.
88Later in R. v. Nixon, 2011 SCC 34, [2011] S.C.J. No. 34, which is a case involving a claim of abuse of process based on the Crown’s repudiation of a plea agreement, Charron J., on behalf of the Supreme Court, at paras. 33 to 38, summarized the development of the abuse of process doctrine by the Supreme Court, which culminated in the common law and Charter regimes for abuse of process being merged under s. 7 of the Charter. Furthermore, Charron J. had emphasized that the burden of proof for establishing an abuse of process under s. 7 is on a ”balance of probabilities”, but that in order for a court to grant a stay of proceedings as an appropriate remedy under s. 24(1) when there has been an infringement of s. 7, the infringement would have to be of the “clearest of cases”. Charron J. also confirmed that there are two categories of abuse of process which would be caught by s. 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that "contravenes fundamental notions of justice and thus undermines the integrity of the judicial process". As well, Charron J. recognized that there are remedies available under s. 24