Ontario Court of Justice
Date: 2024 10 02 Court File No.: Oshawa 23-28103514
Between:
HIS MAJESTY THE KING
— AND —
SHAWN FOLKES
Before: Justice Joseph Hanna
Heard on: September 4, 2024 & September 16, 2024 Reasons for Judgment released orally on: October 1, 2024 Written reasons released: October 2, 2024
Counsel: M. Fabre & N. Hegedus — counsel for the Crown Shawn Folkes — self-represented
Endorsement
Overview
1Shawn Folkes is charged with the following five offences contrary to the Criminal Code:
i. uttering a threat to cause death to the general public, contrary to s. 264.1(1)(a); ii. conveying false information with intent to alarm Mandi Lalonde, namely a threat to bomb a place of work and home, contrary to s. 372(1); iii. uttering a threat to burn, destroy, or damage the property of Mandi Lalonde, contrary to s. 264.1(1)(b); iv. mischief by willfully interrupting the lawful use of Mandi Lalonde’s property, contrary to s. 430(1)(c); and v. uttering a threat to cause death to an “unknown neighbour”, contrary to s. 264.1(1)(a).
2Mr. Folkes is self-represented. His trial is scheduled to begin before me in December 2024. The Crown brings an application for an order appointing counsel to cross-examine two of its anticipated witnesses, Mandi Lalonde, and John Lalonde. Mr. Folkes opposes the request.
3For the reasons that follow, the application is allowed.
Relevant Criminal Code Provisions
4Section 486.3 of the Criminal Code provides for three types of orders appointing counsel to cross-examine a witness. In cases involving child witnesses and in cases related to certain offences the orders are mandatory, subject to a limited exception. In all other cases, the order is discretionary. With regards to discretionary orders, the section lists several factors the court must take into consideration. The witnesses in this case are adults. The parts of s. 486.3 relevant to this application read:
(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
(4) In determining whether to make an order under subsection (3), the judge or justice shall consider
- (a) the age of the witness;
- (b) the witness’ mental or physical disabilities, if any;
- (c) the nature of the offence;
- (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
- (e) the nature of any relationship between the witness and the accused;
- (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
- (g) any other factor that the judge or justice considers relevant.
(4.1) An application referred to in any of subsections (1) to (3) may be made during the proceedings to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
The Positions of the Parties
5The Crown submits that the mandatory order in s. 486.3(2) applies in this case, notwithstanding that Mr. Folkes is not charged with an offence listed in that subsection. The Crown argues that the nature of Mr. Folkes’ charges is “in respect of” the offence of criminal harassment, which is listed the provision. In support of its position the Crown relies on the reasoning in R. v. Barton, 2019 SCC 33 wherein the Court, in the context of interpreting s. 276 of the Code, gave a broad interpretation to the words “in respect of”.
6In the alternative, the Crown says that a discretionary order pursuant to s. 486.3(3) is appropriate to ensure the witnesses can provide a full and candid account while testifying. In this regard, the Crown relies mainly on the nature of the charges and the fear expressed by the witnesses.
7Mr. Folkes contests the application. He indicated that he does not have confidence in whatever lawyer might be appointed. He expressed concern that any such lawyer may be biased against him. In support of this point, he mentioned that he believed the justice of the peace who denied him bail had exhibited bias against him. Mr. Folkes also argues that the issues in this case require that the person cross-examining the Crown’s witnesses have an intricate knowledge of the social media platform involved in the allegations. He expressed doubt that an appointed lawyer would possess such knowledge. He also stated that he did not believe there would be enough time for a lawyer to prepare for the cross-examinations.
8As for the Crown’s argument that his charges are “in respect of” the offence of criminal harassment, Mr. Folkes submits that no criminal harassment charge has been laid. Furthermore, he denies that he committed any harassment, stating that it was the witnesses who initiated contact with him. Mr. Folkes also points out that he has conducted cross-examinations before in other proceedings.
Evidentiary Threshold for the Application
9Applications pursuant to s. 486.3 do not require any specific form of evidence. Like other provisions in the Code involving witness accommodations, a flexible approach is appropriate. See: R. v. Hoyles, 2018 NLCA 46, at para. 11; R. v. J.L.K., 2023 BCCA 87, at paras. 54 – 58; R. v. R.B., 2004 ONCJ 369, at para. 32; R. v. Levogiannis, [1993] 4 S.C.R. 475, at para. 34.
10In J.L.K., at para. 54, the Court made the following comments regarding s. 714.1 applications which, in my view, apply with equal force to s. 486.3:
The central issue for the judge is whether there is a proper and reliable basis on which to exercise that discretion, having regard to the objectives of the section, the factors set out in the section, and any other relevant circumstances.
11On this application, I received a synopsis of the allegations against Mr. Folkes and heard submissions from both Crown counsel and Mr. Folkes. I will outline some of that evidence further below. For now, I will indicate that I am satisfied that I have a sufficient and reliable evidentiary basis, having regard to the objectives of the provision, to exercise my discretion appropriately.
Analysis
Section 486.3(2)
12I agree with the Crown that the words found in s. 486.3(2) should not be read as limiting its application to situations where the offences listed in that subsection have been charged. Both the text of the provision and its purpose support a wider interpretation.
13The modern approach to statutory interpretation is well established: “... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87 as cited in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 and R. v. T.W.W., 2024 SCC 19, at para. 56.
14Section 486.3(2) applies in any proceedings “in respect of” certain listed offences. The Supreme Court of Canada has consistently given these words a broad meaning.
15In Barton, when interpreting s. 276 of the Code, the Court stated at paras. 72 - 73:
the opening words of s. 276(1) and (2) - proceedings "in respect of" a listed offence - are "of the widest possible scope" and are "probably the widest of any expression intended to convey some connection between two related subject matters" (Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39). These words import such meanings as "in relation to""with reference to", or "in connection with" (ibid.).
Parliament would not have chosen this exceptionally broad language if it intended to limit the application of the s. 276 regime to proceedings in which a listed offence was expressly charged. Narrower language such as "in a prosecution for" a listed offence or "where a person is charged with" a listed offence was equally available. Yet Parliament declined to adopt those narrower formulations and instead chose a much broader one. That choice must be given effect.
16In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, the Supreme Court commented on the words “evidence with respect to the commission of an offence” found in s. 487 of the Code. The Court stated, at para. 15: “[t]he natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.”
17Most recently, in Poonian v. British Columbia (Securities Commission), 2024 SCC 28, the Court discussed the words “in respect of an offence” found in s. 178(1)(a) of Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. The Court stated at para. 36: “The words ‘in respect of’ are of ‘the widest possible scope’ in conveying a link between related subject matters”.
18It is a basic rule of statutory interpretation that the same words should be given the same meaning throughout a statute: R. v. Zeolkowski, [1989] 1 S.C.R. 1378, at para. 19; British Columbia v. Philip Morris International, Inc., 2018 SCC 36, at para. 30. Applying this principle, I follow the approach taken in Barton as elaborated upon by the Ontario Court of Appeal in R. v. A.M., 2024 ONCA 661. I find that s. 486.3(2) applies to the cross-examination of a complainant in a proceeding which is, in substance, “in respect of an offence” listed: Barton, para. 76; A.M., at paras. 88 - 92.
19The purpose of s. 486.3 is to protect vulnerable complainants and to facilitate their providing full and candid testimony: R. v. P.N.S., 2010 ONCJ 244, at para. 13; R. v. Lundrigan, 2020 ABCA 281, at para. 81; R. v. C.G.M., 2015 ABCA 375, para 16, leave to appeal ref'd, [2016] S.C.C.A. No. 163; R. v. Fox, 2017 BCSC 854, at para. 5. Applying a more rigid reading to s. 486.3(2) would undermine this purpose by putting form over substance: Barton, at para. 75.
20With this approach in mind, I find that the offences Mr. Folkes is charged with are, in substance, “in respect of” the offence of criminal harassment, and that Mandi Lalonde and John Lalonde are alleged victims. Clearly, Mr. Folkes is presumed innocent of all the charges before the court. My purpose here is simply to describe the nature of his allegations pertaining to Mandi Lalonde and John Lalonde: A.M., at para. 92.
21In the materials provided to me, it is reported that Ms. Lalonde is “beyond terrified” of Mr. Folkes and fears for her safety daily. It is alleged that Mr. Folkes had messaged Mr. Lalonde (Ms. Lalonde’s husband) Ms. Lalonde’s address and place of employment, threatening to bomb it. It is reported that Ms. Lalonde and Mr. Lalonde changed their daily schedule because they took the threat seriously. The substance of these allegations is “in respect of” the offence of criminal harassment. See: R. v. Province, 2019 ONCA 638, at paras. 120 – 121. I do not consider these allegations to represent a “mere alignment of ‘some elements’ of the charged offence and an enumerated offence”: A.M., at paras. 97 - 98; R. v. A.M., 2021 ONCJ 266, at paras. 25 and 27.
22Furthermore, I am not of the opinion that the proper administration of justice requires Mr. Folkes to personally conduct the cross-examination of these witnesses. Mr. Folkes’ mistrust of counsel, while apparently sincere, seems to me to be based on speculation and a misunderstanding of the responsibilities of counsel: Fox, at paras. 9 – 13. Mr. Folkes’ trial is scheduled to begin more than two months from now. I am confident that this will provide counsel sufficient time to prepare an effective cross-examination of the Crown’s witnesses. Competent lawyers are routinely expected to conduct cross-examinations on subjects more complicated than what is contemplated in this case.
Section 486.3(3)
23In the event that I am wrong regarding the applicability of s. 486.3(2), I also find that a discretionary order for an appointment of counsel is appropriate pursuant to s. 486.3(3) of the Code. I am “of the opinion that the order would allow the giving of a full and candid account from the witness[es] of the acts complained of or would otherwise be in the interest of the proper administration of justice.” In reaching this conclusion, I have considered the following factors:
i. The nature of the charges, ii. the fear expressed by Ms. Lalonde, iii. Mr. Lalonde’s alleged receipt of the threat, iv. the reported change in the witnesses’ daily behaviour because of the defendant’s alleged conduct, and v. society’s interest in encouraging the participation of similar witnesses in the criminal justice process.
Conclusion
24The Crown’s application for an order pursuant to s. 486.3 of the Criminal Code appointing counsel to cross-examine Mandi Lalonde and John Lalonde is granted.
Released: October 2, 2024 Signed: Justice Joseph Hanna