COURT OF APPEAL FOR ONTARIO

DATE: 20211210 DOCKET: C68878

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Miller Group Inc. and Glenn Fernandes Respondents

Counsel: Giuseppe Ferraro, for the appellant Norm Keith and Maciej Lipinski, for the respondents

Heard: September 20, 2021 by video conference

On appeal from the order of Justice Chantal M. Brochu of the Ontario Court of Justice, dated June 25, 2019, dismissing an appeal from the acquittals entered by Justice of the Peace B.I. Leaman, dated September 18, 2017.

Trotter J.A.:

A. Introduction

[1] This appeal arises from a workplace accident that injured two individuals.

[2] Miller Group Inc. (hereafter “Miller”) was contracted to pave a road in Northern Ontario. Mr. Fernandes, an employee of Miller, supervised the job. A piece of heavy equipment, a rubber tire roller, was used in the paving project. The roller went out of control and it ended up in a ditch. The operator of the roller was hospitalized for 11 days; another employee, who was able to jump out of the way, suffered less serious injuries.

[3] The incident was reported to the Ministry of Labour (“MOL”). [1] Investigators attended at the scene and seized the roller under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). Before the roller was inspected, a lawyer for Miller wrote to the MOL inspectors and alleged that the machinery had been unlawfully seized. He further directed that no inspection could be performed unless his client consented.

[4] Despite the lawyer’s letter, the inspection proceeded. This involved disassembling the roller. Before releasing the roller back to Miller, the inspectors offered to re-assemble it. Miller declined the offer and gave the roller away as scrap without conducting any testing of its own.

[5] Miller (as an employer) and Mr. Fernandes (as a supervisor) were charged with workplace safety offences under ss. 25(1) and 27(1)(a) of the OHSA, respectively. Miller brought a pre-trial Charter application alleging infringements of its rights under ss. 8 and 11(d) of the Charter.

[6] The Justice of the Peace dismissed the s. 8 claim, but found that the conduct of the inspectors infringed s. 11(d) because: (a) they should have halted their inspection in light of the lawyer’s letter; (b) they failed to keep proper notes; (c) they did not follow internal policy manuals; and (d) their testimony was conflicting. The Justice of the Peace excluded the results of the inspection under either ss. 24(1) or (2) of the Charter, the precise basis being unclear. The Crown called no further evidence and the charges were dismissed against Miller and Mr. Fernandes.

[7] The Crown’s appeal to a judge of the Ontario Court of Justice (“the appeal judge”) was dismissed. She found that the Justice of the Peace made no legal errors in excluding the evidence as a remedy for the breach of s. 11(d) of the Charter. She determined that it was unnecessary to address the submissions of Miller and Mr. Fernandes that there was also a breach s. 8 of the Charter.

[8] Nordheimer J.A. granted the Crown’s application for leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P. 33.

[9] For the reasons that follow, I would allow the Crown’s appeal and order a new trial. The Justice of the Peace erred in finding that the lawyer’s letter required the inspectors to only conduct an examination of the machine in the presence of the representative(s) of Miller. Neither Miller nor Mr. Fernandes had any right to direct the investigation into offences under the OHSA. This made inconsistencies in the evidence of the inspectors irrelevant for Charter adjudication purposes.

[10] Similarly, the failure of the inspectors to observe internal policy guidelines could not amount to a violation of s. 11(d) of the Charter. Although deviations from these normative practices may impact on the value of the inspectors’ testimony on the trial proper, these documents had no force of law for constitutional purposes.

[11] The Justice of the Peace also erred in finding an infringement of s. 11(d) of the Charter. He employed the wrong analytical framework in adjudicating what was essentially a lost or destroyed evidence claim. More fundamentally, neither Miller nor Mr. Fernandes established any prejudice flowing from the MOL’s handling or inspection of the roller. To the contrary, Miller gave the roller away as scrap, essentially precluding further testing.

[12] The appeal judge erred in law by adopting the reasons of the Justice of the Peace and, without further analysis, simply endorsed his legal errors.

B. Factual Background

(1) The Accident

[13] The accident occurred on August 18, 2015 on a roadway approximately 40 kilometers outside of Thunder Bay, Ontario. On the same day, MOL inspectors attended at the scene, which was considered to be a “workplace” within the meaning of the OHSA. Inspector Thomas Grant photographed the scene and interviewed some of the workers. He made notes and issued a Field Visit Report (“FVR”) in which he described the investigatory actions he had taken. Engineer Jeff Rivard also attended and observed a broken brake line on the roller which he thought had been broken before the incident.

[14] Acting under the authority of s. 54 of the OHSA, MOL employees seized the roller and took it to an unmonitored Ministry of Transportation property. [2] On August 20, 2015, the roller was moved to a private facility where it was disassembled and inspected.

(2) The Letter and the “Stand Down” Order

[15] On August 21, 2015, prior to the machine being inspected, a lawyer for Miller wrote to Mr. Grant to complain that the roller had been illegally seized. The letter also purported to direct the course of the investigation:

Our client intends to cooperate with the Ministry of Labour’s investigation of the above-noted incident. In the spirit of mutual cooperation, and to ensure no spoilage of the equipment or evidence to be gathered, we request that no steps be taken by a Ministry of Labour Engineer or other technical expert without our clients’ knowledge and consent. Further, any steps taken to test the equipment involved in the incident, replace parts on the equipment, or any other technical aspect of the investigation should only be done with our clients’ knowledge and consent.

Further to the above, we request that copies of any Field Visit Reports or Orders related to this matter be copied to me immediately upon issue. [Emphasis added.]

[16] It was not until August 24, 2015 that Mr. Grant accessed the letter on his laptop computer. Not familiar with this type of request, he forwarded the letter to his acting manager, Cary Roy. In the meantime, he claimed to have given a “stand down” order to Mr. Holder and Mr. Rivard, who were involved in testing the roller that day. The evidence of MOL personnel, however, was contradictory on this point. The Justice of the Peace found that the note-taking of Mr. Grant was lacking in certain respects. Mr. Grant admitted that he did not follow MOL guidelines with respect to notetaking, what should be included in FVR’s, and when items are seized from a work site. Mr. Roy also received similar criticism by the Justice of the Peace.

[17] Mr. Roy’s credibility was a matter of considerable importance to the Justice of the Peace, especially on the “stand down” issue. Phone records did not support his version of events. The Justice of the Peace found Mr. Roy to be “nervous, defensive and evasive when being questioned by Miller’s lawyer”. But it is unnecessary to go into further detail on this issue because, as discussed below, it did not matter at this stage of the proceedings. I assume for the sake of argument on this appeal that the evidence was inconsistent and contradictory.

[18] Mr. Rivard, an engineer, was questioned about a document prepared by the Professional Engineers of Ontario (“PEO”) entitled “Forensic Engineering Investigations.” Among other things, the document reads:

If destructive inspection/testing is required, all interested parties should be provided an opportunity to review and comment on the inspection/testing protocol and hold points, and witness the inspection/testing. The aim should be to reach consensus as to the inspection/testing protocol. Even when all parties are present, any disassembly or inspection that changes the state of the evidence should be documented in detail for ease of future explanation.

[19] Despite the letter from the lawyer, the inspection proceeded without the consent of, and in the absence of, anyone representing Miller. Photographs and notes were taken during the inspection process.

(3) The Return of the Roller

[20] Following the inspection, the roller was returned to Miller. As noted, the MOL offered to reassemble the machine. The offer was refused. The roller was “taken out of service” and given to Gary Steele Haulage & Grading Limited. At the time of the motion before the Justice of the Peace, the roller was still at this location; however, the engine, transmission, and wheels had been removed. There was no evidence that it was further inspected at the direction of Miller or Mr. Fernandes.

C. Findings in the Courts Below

(1) The Justice of the Peace

[21] The Justice of the Peace found no infringement of s. 8 of the Charter because the MOL acted within its statutory power under s. 54(1)(e) of the OHSA.

[22] The basis for the Justice of the Peace’s finding that there was a breach of s. 11(d) is less clear. He expressed concern about the failure of MOL employees to follow its own procedural manual. He was critical of their failure to take proper notes of the steps they took in furtherance of the investigation.

[23] The Justice of the Peace also found the inconsistencies in the evidence relating to the “stand down” order to be “troubling”. He explained:

Based on the inconsistent evidence among Mr. Grant, Mr. Roy and Mr. Rivard, when added to that of Mr. Holder, this Court is left in great doubt as to the credibility and reliability of each of the MOL employees who testified on this motion. This doubt goes directly to the heart of the s. 11(d) motion made by Miller. [Emphasis added.]

[24] The Justice of the Peace acknowledged that the OHSA did not require a representative of the employer to be present for the inspection of the roller. He nonetheless concluded that “fairness dictated that should have been so, especially in light of the lawyer’s letter.” He further found that Mr. Rivard’s failure to follow the PEO guidelines:

contributed to the defendants being deprived of the opportunity to participate in the inspection of the seized machine to the extent that spoilation occurred. The machine, once inspected on August 24 by disassembly of some of its components, was no longer in the state it was on August 18 when it was seized.

[25] The Justice of the Peace also addressed the absence of any evidence of prejudice to Miller and Mr. Fernandes:

This Court acknowledges that it seems odd that Miller, through Mr. Fernandes, when given the opportunity to have the machine put back together chose not to do so, nor did they have the machine tested or examined, especially the transmission since that component was a potential problem with it according to some of Miller’s employees at the work site. However, in this Court’s view, those actions or inactions do not undermine the defendants’ rights under s. 11(d) of the Charter. [Emphasis added.]

[26] On the issue of remedy, the Justice of the Peace refused to stay the proceedings. He said, “Again, the onus rests on the moving party to show on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute, as noted in s. 24(2) of the Charter.” He relied on Ontario (Ministry of Labour) v. JR Contracting Property Services et al., 2011 ONCJ 316, in which R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 was applied. He concluded that, “[f]ollowing the Grant analysis”, the impact of the breach denied Miller and Mr. Fernandes the opportunity to make full answer and defence. He ultimately concluded that the admission of the evidence would bring the administration of justice into disrepute.

(2) The Appeal Judge

[27] The appeal judge took a different approach to the s. 11(d) claim. She placed great reliance on the Supreme Court of Canada’s decision in R. v. Harrer, 1995 SCC 70, [1995] 3 S.C.R. 562 and this court’s decision in R. v. Spackman, 2012 ONCA 905, 300 O.A.C. 14, which hold that a judge may exclude evidence, not because it was obtained in a manner that infringed the Charter, but because its admission into evidence would render the trial unfair.

[28] After discussing this line of authority, the totality of the appeal judge’s analysis of the issue is found in paras. 64 and 65 of her reasons:

The foregoing illustrates that Justice of the Peace Leaman considered the actions or inactions for which he found amounted to an infringement of the Respondents’ Charter right resulted in actual prejudice to the Respondents. A review of the Reasons certainly does not translate to a matter in which the Court found that the actions or inactions amounted to an automatic breach.

This is a matter in which the credibility and reliability of each of the MOL employees was factored and played a substantial role in the Court’s decision; Justice of the Peace Leaman in his analysis and findings indicated that “this doubt goes directly to the heart of the s. 11(d) motion.” It was open to the trial judge to conclude that the MOL employees’ actions and inactions amounted to a breach and therefore there is no basis for interfering with his decision. [Emphasis added.]

[29] On the issue of remedy, despite the language of the Justice of the Peace reproduced in para. 26, above, the appeal judge found that the evidence of the inspection had been excluded under s. 24(1) of the Charter, not s. 24(2). However, in view of how I would dispose of the appeal, this finding is inconsequential.

D. Analysis

(1) Introduction

[30] The Justice of the Peace erred in finding that the Charter rights of Miller and Mr. Fernandes were infringed by the manner in which the investigation was conducted. The appeal judge erred in law in upholding this decision.

[31] The root of the problem stemmed from the lawyer’s letter and the effect given to it by the Justice of the Peace. This erroneous treatment of the letter spawned a cascade of further errors. For instance, testimonial inconsistencies associated with sharing the “stand down” order and the adequacy of the inspectors’ note-taking, while potentially relevant at trial, were not capable of supporting a Charter violation. Nor could a failure to follow internal protocols sustain such an infringement.

[32] Most importantly, the courts below erred in granting (the Justice of the Peace) and upholding (the appeal judge) a Charter remedy in the absence of evidence that Miller or Mr. Fernandes suffered any prejudice.

(2) No Right to Direct the Investigation

[33] As noted above, the lawyer’s letter insisted on the rights of knowledge and consent in the investigative process. Presumably based on the evidence of Mr. Rivard’s failure to follow PEO guidelines, this assertion morphed into an insistence on the right to be present during the inspection. The lawyer’s letter never made such an extravagant claim.

[34] In the criminal law context, the right to make full answer and defence in s. 11(d) of the Charter does not extend so far: R. v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, at paras. 29-31. An accused person does not have a “constitutional right to direct the conduct of a police investigation of which she or he is the target”: Spackman, at para. 108. The police are not required to obtain the consent of the accused person before taking investigative steps. An accused person has no right to insist that further or other investigative steps be taken. Nor are the police required to permit the target of investigation to be present during the inspection or testing of physical evidence.

[35] I use as an example a case of dangerous operation of a conveyance (i.e., a motor vehicle) causing bodily harm (Criminal Code, R.S.C. 1985, c. C-46, s. 320.13(2)). The driver loses control of a vehicle and ends up in a ditch. The driver is seriously injured, but their passenger escapes with less serious injuries. Once the vehicle is lawfully seized, the police do not require the consent of the driver and/or owner of the vehicle to conduct a mechanical inspection of the vehicle. There is no entitlement to be present during the inspection of the vehicle. Instead, the obligation of the police is to preserve items so that they may be tested or examined by the accused: R. v. La, 1997 SCC 309, [1997] 2 S.C.R. 680, at paras. 17 and 20. It should be no different with OHSA investigations.

[36] There are strong policy reasons for this conclusion. Criminal investigations carry the potential for much more significant consequences than OHSA investigations. If the former does not attract such a right, no such right should exist in the latter context. It would be unreasonable to conclude that the subjects of OHSA investigations have Charter rights above and beyond those afforded to subjects of true criminal investigations.

[37] Moreover, as the Crown submits, a requirement of knowledge and consent, let alone presence, could thwart or stall timely investigations, potentially endangering the very people the OHSA is meant to protect (i.e. workers) and the public in general.

[38] The reach of the OHSA is broad. Section 1 of the Act defines a “workplace” as “any land, premises, location or thing at, upon, in or near which a worker works.” Investigators must be permitted to respond to workplace incidents swiftly and efficiently. As Nordheimer J.A. said in granting leave to appeal in this case, at para. 16: “One can think, for example, of accidents involving collapsed cranes, collapsed scaffolding, elevator failures, and a host of other accidents that involved the operation of all sorts of pieces of equipment.” Serious disruption to the OHSA mandate could result if investigators were constitutionally required to accommodate the type of request made in this case.

[39] Consequently, the Justice of the Peace and the appeal judge erred in finding a constitutional right to participate in the examination of the roller. It did not amount to an infringement of s. 11(d) of the Charter.

[40] Relatedly, the Justice of the Peace also identified his concerns with the credibility of MOL inspectors, related to their divergent evidence on whether a “stand down” order was made, and whether it was in fact communicated to those involved in the inspection of the roller. In the criminal context, the credibility of police officers is often relevant to the adjudication of Charter claims. The “who did what and why or why not” are essential to Charter claims. In determining whether rights have been infringed, trial judges are often called upon to resolve credibility issues as between police officers, and between the police and the accused person. Failing to do so may amount to a fatal error. In R. v. McCarthy (1996), 1995 ONCA 965, 91 O.A.C. 348 (C.A.), rev’d 1996 SCC 212, [1996] 2 S.C.R. 460, a new trial was ordered because the trial judge failed to resolve credibility issues on a s. 8 Charter voir dire on the issue of whether the search was conducted in a reasonable manner.

[41] This is not such a case. As discussed above, the question of whether the inspectors should have bowed to the lawyer’s letter was not a legitimate Charter claim. Accordingly, the credibility of the inspectors on this issue was immaterial at this stage of proceedings. It should not have factored into the decision on whether s. 11(d) of the Charter had been infringed.

[42] Similarly, the Justice of the Peace and the appeal judge were troubled by the failure of the MOL to follow its own manual or guidelines, as well as Mr. Rivard’s failure to follow PEO guidelines. Although these failings may be relevant to the credibility of these witnesses and their competence in conducting the inspection, these are issues to be considered by the trier of fact. The underlying manuals/documents that were seemingly ignored by the inspectors do not attain the status of legal authority upon which a Charter breach may be founded: see R. v. Jageshur (2002), 2002 ONCA 45116, 169 C.C.C. (3d) 225 (Ont. C.A.), at paras. 50-53; R. v. Dallas, 2002 BCSC 760, at paras. 104-5.

(3) The Correct Analytical Framework

[43] Both courts below erred in their methodological approach to the claim that the disassembly of the roller amounted to a breach of s. 11(d) of the Charter. Ultimately, this was a case of lost or destroyed evidence. The procedure for adjudicating these types of claims has long been established. Lost or destroyed evidence claims are governed by ss. 7 and 11(d) of the Charter, tied to an individual’s right to a fair trial and right to make full answer and defence. In this case, both courts below erred in finding a breach of s. 11(d) in the absence of a finding of prejudice. Moreover, the appeal judge further erred in relying on R. v. Harrer as a route to exclude the evidence.

(a) The Appropriate Legal Principles: the Lost Evidence Regime

[44] As part of its disclosure obligations under s. 7 of the Charter, the Crown has a duty to preserve relevant evidence: R. v. Egger, 1993 SCC 98, [1993] 2 S.C.R. 451, at p. 472; La, at para. 17. When relevant evidence is lost or destroyed, the Crown must satisfy the court that it was not lost or destroyed as a result of unacceptable negligence: La, at para. 20; R. v. Abreha, 2019 ONCA 392, at para. 11; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 26; R. v. Stinchcombe, 1994 ABCA 113, 88 C.C.C. (3d) 557, aff’d 1995 SCC 130, [1995] 1 S.C.R. 754. If the Crown satisfies this threshold, s. 7 has not been breached; conversely, a failure to establish that the destruction was not due to unacceptable negligence will amount to an infringement of s. 7. Depending on the circumstances, it may also amount to an abuse of process: La, at para. 23.

[45] In order to obtain a stay of proceedings, it must be established that the loss or destruction of evidence compromises the ability of the accused to make full answer and defence, or that irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue: La, at para. 24; R. v. Bero (2000), 2000 ONCA 16956, 137 O.A.C. 336, 151 C.C.C. (3d) 545, at para. 42. However, “[a] stay of criminal proceedings is the appropriate remedy only in extraordinary circumstances”: Hersi, at para. 25.

(b) The Timing of the Application and the Need for Actual Prejudice

[46] The timing of the application is critical. Generally speaking, a motion for a stay based on lost or destroyed evidence should not be brought at the outset of the trial. It should be brought at the end of trial. This was addressed in Bero, where the police relinquished control of a vehicle that was subsequently sold to and destroyed by an auto wrecker. The trial judge entertained a motion to stay proceedings as a pre-trial motion. As Doherty J.A. said, at para. 18:

The trial judge should not have ruled on the motion at the outset of the trial. This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial. [Emphasis added.]

See also R. v. Knox (2006), 2006 ONCA 16479, 80 O.R. (3d) 515 (C.A.), at para. 26.

[47] In this case, the appropriateness of a stay was not “manifest” at the outset of the proceedings for the simple reason that there was no evidence that the right to make full answer and defence had been impaired by the conduct of the investigators. Miller and Mr. Fernandes failed establish any prejudice at all. Miller refused the offer to reassemble the roller and gave it away for scrap without further inspection.

[48] Without evidence of prejudice, there can be no remedy: see Knox, at para. 32 (where one vehicle was destroyed and another repaired before they could be inspected by the defence); and R. v. Murray (1994), 1994 ONCA 500, 75 O.A.C. 10, at p. 3 (the defence failed to make a timely request to inspect the vehicle and no prejudice was established in any event). This same approach has been applied in cases prosecuted under the OHSA. In Ontario (Ministry of Labour) v. Lee Valley Tools Ltd., 2009 ONCA 387, 264 O.A.C. 213, Lang J.A. said, at para. 32: “Actual prejudice cannot be presumed or inferred from the mere fact of lost evidence without more.”

[49] In both Bero, at para. 29 and Knox, at para. 29, this court recognized that failure to pursue disclosure with reasonable diligence may weigh against a claim that the Crown’s failure to preserve evidence resulted in a breach of s. 7 Charter rights. In this case, the lawyer’s letter, albeit misguided, was a timely attempt to exert some control over the integrity of the roller. However, this was all undone by the manner in which the roller was disposed of – something entirely of Miller’s own doing.

[50] Both the Justice of the Peace and the appeal judge erred in not following this approach dictated in Bero and subsequent decisions. The motion should not have been addressed at the beginning of the trial. Moreover, even though the Justice of the Peace refused to stay the proceedings, there was no basis to grant any remedy without evidence that the right to full answer and defence had been compromised by the MOL’s handling of the roller. At best, the Justice of the Peace speculated on the issue.

(c) The Reliance on Harrer was Misplaced

[51] By the time the case was argued in the Ontario Court of Justice, Miller and Mr. Fernandes had recalibrated their approach. They persuaded the appeal judge to analyze their claims through the lens of R. v. Harrer. [3] But nor was this a viable route to exclusion of the evidence in this case.

[52] Harrer involved an application to exclude evidence that was obtained in the United States by local police officers. Because they were not acting as agents of Canadian law enforcement officials, the actions of the foreign officers could not amount to a Charter infringement. As noted above, Harrer recognized that trial judge may exclude evidence, not because it was obtained in a manner that infringed the Charter, but because its admission would render the trial unfair. The Harrer Court was divided on whether it is necessary to resort to s. 24(1) of the Charter in these circumstances; however, it is now understood that s. 24(1) is now the preferred route to exclusion: see R. v. White, 1999 SCC 689, [1999] 2 S.C.R. 417, at paras. 86-89, per Iacobucci J.; Spackman, at paras. 101-2.

[53] Purporting to apply this line of cases, the appeal judge noted that the Justice of the Peace found that the evidence was not obtained in an unconstitutional manner; specifically, although there were no direct breaches of Charter rights in testing the machine, “[t]he unfairness would result in allowing the evidence to be introduced at trial given the manner in which it was obtained and not affording the Respondent’s the ability to participate in the inspection.”

[54] Resort to the Harrer line of cases was inappropriate in this case. It amounted to a circumvention of the principles in Darwish and Spackman. As noted above, those cases held that there is no right of an accused person to direct an investigation. Purporting to apply Harrer, the appeal judge achieved the opposite result by justifying a Charter remedy for this very reason.

[55] Even if the Harrer line of cases was applicable, Miller and Mr. Fernandes run into the same problem – there was no evidence of prejudice to their right to make full answer and defence. In Spackman, Watt J.A. held that, at para. 103: “The remedy of evidentiary exclusion under s. 24(1) is not for the asking. An accused who seeks this remedy must establish a breach of his or her Charter rights: the right to a fair trial in accordance with ss. 7 and 11(d) of the Charter.” Miller and Mr. Fernandes failed to do so. Any prejudice they suffered was self-inflicted – they declined the offer to have the roller reassembled and then they got rid of it. The Justice of the Peace found that this conduct seemed “odd.” In fact, it was fatal to any claim to Charter relief.

E. The Appropriate Remedy

[56] In the event that it is successful, the Crown requests an order for a new trial, pursuant to sections 121(b)(i), 126(1), and 134 of the Provincial Offences Act.

[57] Counsel for Miller and Mr. Fernandes submit that, if the Crown is successful, the case should be remitted to the appeal court so that its argument under s. 8 of the Charter may be determined. As noted in para. 7 above, the appeal judge found that it was unnecessary to address this issue.

[58] In my view, it is not appropriate to remit this case back to the appeal court for further consideration. It was open to Miller and Mr. Fernandes to raise the s. 8 Charter issue before us in an effort to uphold the order made by the appeal judge.

[59] A similar issue arose in R. v. Flis (2006), 2006 ONCA 3263, 205 C.C.C. (3d) 384 (Ont. C.A.). In that case, this court heard a summary conviction appeal brought by the Crown under the Criminal Code. The respondents had been convicted at trial. The summary conviction appeal court set aside the convictions, but then entered a stay of proceedings based on delays in the appeal process. The Crown sought leave to appeal to this court.

[60] This court granted leave to appeal, allowed the appeal, and restored the convictions. The respondents requested that the case be remitted to the summary conviction appeal court to deal with “a host of issues” the summary conviction appeal court did not address. This request was denied. As Moldaver J.A. (as he then was) said at para. 55:

It is common ground that in the context of this Crown appeal, the respondents may raise additional alleged errors by the trial judge in an effort to sustain the order of the summary conviction appeal judge. It is further acknowledged that this court may consider and decide the alleged additional errors insofar as they relate to conviction: see R. v. Devitt (1999), 1999 ONCA 1371, 139 C.C.C. (3d) 187 (Ont. C.A.).

[61] The court decided that it was in as good a position to address the additional issues. Proper materials were before this court. Moreover, remitting the case to the summary conviction appeal court would have contributed to an “appalling” delay in the pace of the proceedings.

[62] As already noted, Miller and Mr. Fernandes could have litigated the s. 8 Charter claim in this court. They chose not to do so. The issue was not addressed in their factum. It was only at the conclusion of his oral submissions that counsel for the respondents made this request.

[63] I would decline to remit the case back to the appeal judge. Instead, I would order a new trial. Like Flis, this case has moved at a very slow pace, dating back to August of 2015, when the accident occurred. By allowing the appeal, the orders of both the Justice of the Peace and the appeal judge would be set aside in their entirety. If the Crown determines that it is still in public interest to re-prosecute this case more than six years after the fact, Miller and Mr. Fernandes may renew their s. 8 Charter claim at the new trial, if so advised.

F. Disposition

[64] I would allow the appeal and order a new trial.

Released: December 10, 2021 “D.W.” “G.T. Trotter J.A.” “I agree. David Watt J.A.” “I agree. M.L. Benotto J.A.”

Footnotes:

[1] In 2019, the Ministry of Labour became known as the Ministry of Labour, Training and Skills Development. Given that the incident in question extends back to 2015, and because the courts below made repeated references to the Ministry of Labour, it is convenient to maintain the same terminology.

[2] The fact that the yard was unmonitored was a point that was emphasized by Miller and Mr. Fernandes in this litigation. It was also mentioned by the Justice of the Peace and the appeal judge. However, the significance of this feature of the evidence is unclear. There was no evidence adduced that the machine was tampered with after it was seized.

[3] In their Factum, Miller and Mr. Fernandes submit that the Justice of the Peace relied upon Harrer and Spackman in reaching his decision. However, there is no reference to these authorities in his reasons.