Ontario Court of Justice
Date: 2023-05-30 Court File No.: Regional Municipality of Durham 2860 999 20 1813
Parties
Between:
MUNICIPALITY OF CLARINGTON
— AND —
PETER CHAMBERLAIN and CARRIE CHAMBERLAIN
Before: Justice of the Peace M. Coopersmith
Heard: April 25, 2023 Reasons for Decision on Application Released: May 30, 2023
Counsel
Thomas McKinnon, counsel for the prosecution Jordana Baumgartner, agent for the defendants Peter Chamberlain and Carrie Chamberlain
JUSTICE OF THE PEACE COOPERSMITH:
1The Applicants, Peter and Carrie Chamberlain, are seeking an Order pursuant to subs. 24(1) of the Canadian Charter of Rights and Freedoms staying the prosecution against them on the basis that their right to make full answer and defence, as provided under s. 7 of the Charter, has been violated by the prosecution not complying with its Stinchcombe disclosure obligations in a timely manner.
2In the alternative, the Applicants are seeking an Order declaring a mistrial on the basis that the late disclosure has prejudiced the Applicants’ ability to make full answer and defence which has resulted in an unfair trial.
I. Background
3The Applicants are charged with two counts related to parking or storing more than three recreational vehicles or trailers on their property and a count of using a shipping/cargo container as an accessory structure contrary to The Municipality of Clarington Zoning By-law 84-63. They also face two charges under The Municipality of Clarington Site Alteration By-Law 2008-114 related to grading and placing or dumping fill without obtaining permits.
4The offence date is July 15, 2020. The charges were laid on October 23, 2020, and the defendants were summonsed to first appear in court on December 11, 2020. The defendants received initial disclosure and around September 2022 they retained the services of paralegal, Jordana Baumgartner. Additional disclosure was requested September 27, 2022 and was received October 25, 2022. The prosecution provided further disclosure on March 6, 2023, three weeks prior to the trial date.
5The trial was set to begin and end on March 28, 2023. That day, the prosecution brought its case and the defendant, Peter Chamberlain, provided most of his evidence in examination-in-chief before time ran out. A continuing trial date of April 25, 2023 was set.
6Two days after that first trial date, which originally was the only date on which the trial was to proceed, the prosecution provided additional disclosure in the form of an email exchange initiated on January 2, 2020 by Peter Chamberlain, querying the zoning, land use and history of his property, with continuing emails between January 2 and 7, 2020 amongst only staff members from the Municipality of Clarington without copying the defendant. The string of emails amongst only the staff related directly to the status of the zoning of the defendants’ property whereby a zoning Exception to the Region’s Official Plan in 1985 that had allowed commercial activity on the property appeared to have had been deleted in 2001.
7On April 12, 2023, the Applicants filed this Application to stay the proceedings or declare a mistrial arising out of a breach of their Charter rights. The motion was heard on April 25, 2023.
II. The Issues
8The relevant issues to be determined are as follows:
Did the prosecution’s late disclosure of the January 2020 email after it had closed its case and the bulk of the defence evidence had been presented violate the Applicants’ right to disclosure?
If the right to disclosure has been violated, did it impair the Applicants’ right under section 7 of the Charter to make full answer and defence?
If the Applicants’ right under section 7 of the Charter has been impaired, what is the appropriate remedy?
III. Analysis
1. Did the prosecution’s late disclosure of the January 2020 email after it had closed its case and the bulk of the defence evidence had been presented violate the Applicants’ right to disclosure?
9In accordance with R. v. Stinchcombe, [1991] 3 S.C.R. 326, the prosecution has a legal duty to disclose all relevant information in its possession where there is a reasonable possibility that it may assist the defence to make full answer and defence. This is an ongoing obligation that persists throughout the trial process and must be done early enough to allow the defendant adequate time to take steps he or she is expected to take that affect or may affect this right. Information arising out of the investigation related to the offences is not the property of the prosecution to use in securing a conviction, but is the property of the public to ensure that justice is done. The threshold requirement for disclosure is very low. This right to disclosure of all relevant materials has a broad application and includes material which may have only a marginal impact to the ultimate issues at trial. The prosecution’s duty to disclose, therefore, is triggered whenever there is a reasonable possibility that the information would be useful to the defence in making full answer and defence. Where there is doubt, the prosecution must err on the side of inclusion. Only information that is clearly irrelevant or subject to privilege can be withheld. Defence, on the other hand, also has a duty to exercise due diligence in seeking outstanding disclosure of which it is aware or ought to be aware.
10In the matter before me, the trial was scheduled to start and end on March 28, 2023. Due to an underestimation of the time required to complete the trial, only the prosecution’s case and examination-in-chief of a defence witness was completed. A continuation of the trial was scheduled for April 25, 2023. Two days after that first day of trial and just over three weeks before the date for the trial continuation, the Respondent provided the Applicants with additional disclosure in the form of the January 2020 string of emails amongst municipal staff regarding the status of the zoning of the Applicants’ property and alleging the Exception to the Official Plan had been deleted in 2001. Although the Applicants sent the first email message on January 2, 2020, they previously had not been privy to the emails that continued amongst only the staff between January 2 and 7, 2020.
11Although the prosecution’s only witness, Municipal By-law Enforcement Officer David Williams, was not a party to that email, the defence in cross examination did question him about his knowledge regarding any changes that may have been made to the Exception in the Region’s Official Plan. Officer Williams indicated that he was aware of some sort of amendment being made to the property’s zoning, but he did not know anything more about it. Additionally, despite laying charges against the defendants pursuant to the municipality’s zoning by-laws, he testified that any changes to the property’s zoning had no bearing on the investigation and was outside his realm of expertise. Nonetheless, he subsequently provided the prosecutor with the January 2020 email regarding the deletion of the Exception to the Region’s Official Plan, which was then passed on to the defence after the prosecution had closed its case. A more complete investigation by Officer Williams most likely would have revealed the January 2020 email prior to trial and even prior to him laying charges against the defendants under the municipality’s zoning by-laws. And this email most likely would have more fully informed Officer Williams of the nature of any amendment deleting the Exception to the zoning of the Applicants’ property, resulting in a more fulsome response in cross examination.
12In examination-in-chief of Peter Chamberlain, he was questioned regarding his knowledge of his property’s zoning. He provided several documents, to include the September 3, 1985 Commissioner’s Report to the Planning Committee recommending the Exception be made to the property to allow a commercial activity, as well as a motion that was carried in the May 13, 1996 Municipality of Clarington Council Minutes to preserve the existing Special Exemption in the Region’s Plan which would permit development of a retail clearance centre on the defendants’ property, and also an August 21, 2014 tax bill containing Schedule 3 “Explanation of Property Tax Calculation” with tax amounts listed under a column entitled “Commercial”. Mr. Chamberlain testified that they bought the property in 2012 from property that had previously been severed from the gas station next door that had a commercial operation on the property. The Applicants purchased the property because the real estate agent advertised it as ‘commercial’ property. The Applicants went to the municipality prior to the trial and inquired about any zoning changes made to the property, but the municipality was unable to show them anything. Undoubtably, the defence relied heavily in its defence strategy on the determination of the correct zoning of the property. It is not unreasonable to find that the Applicants, themselves, would have investigated further had this January 2020 email been disclosed to them prior to trial.
13Clearly, the zoning for the Applicants’ property is a key factor in the matter before the Court. Three of the charges are laid pursuant to the municipality’s zoning by-law and two are under its site alteration by-law. It was incumbent upon the investigator in this matter to look into the current zoning of the property before deciding to lay the charges that bring the Applicants before the Court. Had Officer Williams looked closer into the status of the zoning of the Applicants’ property prior to laying the charges, it does not defy logic that his investigation more likely than not would have revealed the January 2020 email. In accordance with the prosecution’s disclosure obligation under Stinchcombe, it then was incumbent on the Respondent to provide the January 2020 email to the Applicants well in advance of the commencement of the trial. Most likely Officer Williams, in cross examination, would have replied not only that he was aware of some sort of amendment to the Exception to the property, but also should have been able to elaborate further that this subsequent 2001 amendment appeared to have deleted the Exception to the zoning of the Applicants’ property in the Official Plan.
14The Applicants did not sit by passively, but made efforts to secure additional disclosure on September 27, 2022, which they received October 25, 2022, with further disclosure provided to them on March 6, 2023, three weeks prior to the date set for trial. It is also unreasonable, in the circumstances, to find that the Applicants knew or ought to have known on the basis of other disclosure that the Respondent had inadvertently failed to disclose relevant information, in the form of internal emails by staff at the Municipality of Clarington discussing the zoning of the property. It is reasonable to accept that this was something the prosecution, perhaps through Officer Williams as the lead investigator, should have discovered and provided in disclosure prior to trial. I am satisfied that the Applicants exercised due diligence in their pursuit of full disclosure.
15For all these reasons, I am satisfied that the Respondent’s late disclosure of the January 2020 email, after the trial had started and after the examination-in-chief and cross examination of its only witness were completed and it had closed its case, violated the Applicants’ right to disclosure.
2. If the right to disclosure has been violated, did it impair the Applicants’ right under section 7 of the Charter to make full answer and defence?
16Section 7 of the Charter reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
17The right to disclosure that meets the low threshold set out in Stinchcombe is a component of a defendant’s right to make full answer and defence which, in turn, is a principle of fundamental justice embrace by section 7 of the Charter (R. v. Dixon, [1998] 1 S.C.R. 244 at p. 257).
18Not every case of failure to provide timely disclosure will result in a violation of section 7 of the Charter. A defendant generally must illustrate “actual prejudice to [his or her] ability to make full answer and defence”. In assessing disclosure issues, the main considerations are trial fairness for both the defendant and society, as well as integrity of the justice system (R. v. Bjelland, [2002] S.C.J. No. 38, at paras 21-24).
19The Applicants have concerns that the January 2020 email was provided to them after the prosecution closed its case and after they had provided the bulk of their defence. This leads them to believe that there is further disclosure that has not been provided. Moreover, it has impaired their ability to fully cross examine Officer Williams and has affected the strategic approach they have taken to their defence. Had this relevant and informative email been provided prior to the start of the trial, the Applicants would have changed their tactical approach to the cross examination of Officer Williams and would have redesigned their overall defence strategy. Consequently, their ability to make full answer and defence in a fair trial under section 7 of the Charter has been impaired.
20I give little to no weight to the Applicants’ speculation that further relevant disclosure may exist. Although the existence of the January 2020 email could not reasonably have been contemplated by the defendant, without some hint to support that further disclosure might exist and what the nature of that outstanding disclosure might be, this argument cannot be sustained.
21The prosecution’s case began and ended at trial on March 28, 2023. The January 2020 email was provided to the defendants on March 30, 2023. It is the Respondent’s submissions that the Applicants are free to subpoena the writers of the January 2020 email as part of their defence. Moreover, the Applicants have not established prejudice created by the non-disclosure of the January 2020 email prior to the trial commencing and by the closing of the prosecution’s case.
22While the Respondent submits that the Applicants are free to subpoena the writers of the January 2020 email, I accept the Applicants’ submission that timely disclosure would have allowed the Applicants to have better planned their tactical approach to their defence and would have prevented their defence from having to unfold in a piecemeal fashion. Moreover, I am satisfied that timely disclosure would have altered the Applicants’ approach and response to the cross examination of Officer Williams. This email is not new information and a more comprehensive investigation by Officer Williams before laying the charges more likely than not would have revealed the existence of this email.
23I accept that the Applicants have been further prejudiced by not having full disclosure that would have assisted them in determining their appropriate defence strategy prior to the commencement of the trial. Not only would it have provided them with additional information with which to cross examine Officer Williams, but also the bulk of Peter Chamberlain’s evidence, focussing on determining the proper zoning of his property, would have been quite different had the January 2020 email been disclosed prior to the Applicants setting out their approach to their defence. Both factors weigh heavily on the Applicants’ inability to make full answer and defence to the charges. The contents of the January 2020 email provided the Applicants with new information that updated them regarding the current zoning status of their property, a key factor in these proceedings, and I do not accept the Respondent’s submission that the history of the zoning of the Applicants’ property from 2001 is in any way irrelevant to these matters.
24At the heart of the charges facing the Applicants is the status of the current zoning of their property. As previously stated, three of the charges arise pursuant to the municipality’s zoning by-law. The January 2020 email illustrates part of a missing and vital piece of the property’s zoning history from 2001 that has a significant impact on the status of its current zoning. Therefore, I find the Applicants’ tactical approach to its defence, the unfolding of the trial process and its potential outcome may have been different had this January 2020 email been disclosed in a timely manner. The fairness of the trial process has been affected.
25There must be a balancing of the Applicants’ interest to a fair trial and the public’s interest in the efficient administration of justice. The matter should be heard on its merits, but not at the expense of the Applicants’ right to a fair trial. I am satisfied that there is a reasonable probability that the untimely disclosure of the January 2020 email unfairly impaired the Applicants’ right to make full answer and defence as is their right under section 7 of the Charter.
3. If the Applicants’ right under section 7 of the Charter has been impaired, what is the appropriate remedy?
26Even if this Charter right to disclosure to enable full answer and defence had been violated, if the trial process was fundamentally fair or there was no reasonable possibility that the trial outcome might have been different had the undisclosed material been produced in a timely fashion, a remedy under subsection 24(1) of the Charter would not be in order (R. v. Dixon, supra, at p. 246). However, I do not find that to be the case here.
27Subsection 24(1) of the Charter permits a person whose rights have been infringed to apply to a court of competent jurisdiction for such remedy as the court considers appropriate and just in the circumstances. It reads:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
28There are several remedies available for breach of disclosure that impairs the defence’s ability to make full answer and defence in a fair trial process, as is their right under section 7 of the Charter. Some of the remedies are more severe than others, with the appropriate remedy being the one that is least onerous. In order from least to most severe, the available remedies include, inter alia, adjourning the continuation of the trial to a later date, issuing a disclosure order and adjournment, recalling witnesses, declaring a mistrial, excluding evidence not disclosed in a timely manner and staying the proceedings.
29Not every one of these remedies are appropriate in the matter before this Court. For example, in their efforts to make full answer and defence, an adjournment to a later date would not repair the damage done to the Applicants’ fulsome ability to cross examine the Respondent’s witness who had heard the bulk of the defence evidence, nor to their ability to redo the tactical approach to their defence strategy after the bulk of defence testimony had already been entered into evidence. Obviously, a disclosure order is not an option, given the relevant January 2020 email has already been provided to the Applicants. I also accept the Applicants’ argument that recalling Officer Williams is not appropriate, given that he remained in the courtroom to hear Peter Chamberlain’s testimony laying out most of the defence’s case and, consequently, the prejudicial effect in this case could not be repaired by providing the Applicants with a second opportunity at further cross examination at this stage of the trial. Also, the exclusion of the January 2020 email would only further prejudice the Applicants in determining their appropriate defence strategy this far into the trial. What remains for me to consider is either to declare a mistrial or to stay the proceedings.
30A stay of proceedings is a remedy of last resort, to be imposed only in the clearest of cases where the defendant establishes, on a balance of probabilities, that an abuse of process (at common law or under the Charter) either irremediably prejudices the integrity of the justice system or the defendant’s ability to make full answer and defence or obtain a fair trial (R. v. O'Connor, [1995] 4 S.C.R. 411 at paras. 68, 82). This remedy should be considered only when the prejudice cannot be repaired through any other remedy. By contrast, where a mistrial is sought, the Applicant need only illustrate that the failure to disclose in a timely manner either affected the trial outcome or the overall fairness of the trial process. (Dixon, supra, at para. 35). Consequently, in finding there was a violation of the Applicants’ right under section 7, before imposing a stay of proceedings, I must first determine if a mistrial is an appropriate remedy under subsection 24(1) of the Charter.
31This Application was brought prior to determining the reliability of the trial result. Hence, if the remedy should take the form of a mistrial, even if the late disclosure would not affect the reliability of the trial result, I must consider the effect of the late disclosure on the overall fairness of the trial process. The proper test is whether the defendant’s ability to make full answer and defence has been impaired. In this case, the January 2020 email was not provided prior to the commencement of the trial, thereby depriving the Applicants of the ability to redesign their overall defence strategy. The email was provided to the Applicant two days after the prosecution had closed its case, after cross examination of the prosecution’s only witness and after that witness was privy to the bulk of the defence’s case. I have found that the Respondent’s late production of the January 2020 email clearly impaired the Applicants’ right to make full answer and defence and, hence, the overall fairness of these proceedings has been affected. Consequently, declaring a mistrial to prevent a miscarriage of justice is in order and would be the more appropriate remedy than staying the proceedings under subsection 24(1) of the Charter.
IV. Conclusion
32In conclusion, for the reasons I have provided, I find the prosecution’s late disclosure of the January 2020 email after it had closed its case violates the Applicants’ right to disclosure. Further, this lack of timely disclosure impairs the Applicants’ right under section 7 of the Charter to make full answer and defence. The overall fairness of the trial process has been affected. The appropriate remedy under subsection 24(1) of the Charter is to declare a mistrial.
Released: May 30, 2023 Signed: Justice of the Peace M. Coopersmith