Court Information

Ontario Court of Justice

Date: April 24, 2017

Court File No.: Mississauga 5672387B

Parties

Between:

City of Mississauga

— and —

Jason Atis

Before the Court

Before: Justice of the Peace V. N. Fisher-Grant

Heard on: January 31, 2017

Reasons for Judgment released on: April 24, 2017

Counsel

C. Mariuz — counsel for the prosecution

G. Atis — counsel for the defendant

Judgment

JUSTICE OF THE PEACE FISHER-GRANT:

Introduction

[1] Jason Atis stands charged with a speeding offense dated August 5, 2016. The matter came before the court by way of a motion for disclosure of certain materials alleged to be in the possession of the prosecution.

[2] Initial disclosure was provided to the defense by the prosecution which included the officer's notes and portions of the laser testing manual. The defense and the prosecution have agreed on some items requested in the application material. The prosecution has agreed to assist by contacting the officer regarding specific instances where his notes that are deemed illegible. Further, the prosecution has agreed to provide information about the officer's last training date on the laser device and whether he was a properly qualified operator of the device on the date in question.

Legal Framework

[3] R. v. Stinchcombe, [1991] 68 C.C.C. (3d) 1 (S.C.C.) is the leading case regarding disclosure obligations on the part of the prosecution. It indicates that the prosecution shall disclose all relevant evidence within its possession. The obligation is very broad but not unlimited. Indeed the obligation has been limited in specific instances by Courts following the decision.

[4] With this said, I turn to each of the requests:

Request 1: Any Other Notes of Tickets the Officer Issued That Day

[5] The defense submits that this information is necessary to understand whether the officer is a consistent note-taker. The defense submits that a comparison between the different ticket's notes may yield information whether the officer has embellished his notes on this occasion or whether his notes are relatively sparse. It is further submitted that this in turn will enable the defense to test the credibility of the officer in relation to the matter and assist in establishing whether there is any bias on the part of the officer.

[6] The prosecution argues that there is no factual foundation establishing an air of reality to show the relevance of the request. I have not been provided any case law directly on this point by either counsel.

[7] In my view this request is speculative and a fishing expedition. The defense has not established anything particular to this matter that would lead the court to believe there is any air of reality to the assertion that the officer's notes in other cases may show bias or reveal material of assistance in questioning the officer's credibility. This request is clearly a fishing expedition wherein the defense hopes there may be something useful in the other notes.

[8] While I am mindful of the defendant's right to make full answer and defense, this request if granted on such sparse assertions would open the flood gates of disclosure requests. As observed in R. v. McNeil, 2009 SCC 3, "it is important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in 'fishing expeditions' for irrelevant evidence." Para. 28. Justice Rosborough in R. v. Collins, [2010] A.J. No. 666, observed that part of the practical limits of the system of justice are proper boundaries for the prosecution's disclosure obligations." And further "these concerns are multiplied in the context of requests for production in the hundreds of thousands of regulatory offenses prosecuted in Alberta courts each year." The regulatory / traffic courts in Ontario are undoubtedly as busy as those described by his Honour in Alberta and I agree with his concerns.

[9] In this matter, given the speculative nature of the request, disclosure is denied.

Request 2: Discipline and Human Resource Records of the Officer

[10] The defense submits that these records are necessary for a fulsome cross-examination of the officer related to credibility in order to make full answer and defense. The prosecution submits that there is no evidence led as to a factual foundation why these materials are relevant to the particular charge before this court.

[11] Again R. v. McNeil indicates that:

It is important for the effective administration of justice that criminal trials remain focused on the issues to be tried and that scarce judicial resources not be squandered in 'fishing expeditions' for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function." [para. 28] ... the importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminal proceedings remains a concern, more than a decade after O'Connor. [para.29]

[12] And further in R. v. Collins, when discussing disclosure obligations in the regulatory offense context the court observed that,

The vast majority of regulatory offences do not rise to this level of complexity, however. Some regulatory offences are so simple, in fact, that they are classified as absolute liability offences. Others, including most 'traffic' violations are minor and routine. When one takes into account all bylaws created by delegated legislative authority to every municipality in the province, it is safe to conclude that the majority of regulatory offences are simple matters requiring effective but also efficient litigation processes. In the case of regulatory offences: (1) where the case for the prosecution is not complex; (2) the consequences of the alleged wrongdoing are not grave; and (3) the penalties are not significant, courts have been prepared to 'draw the line' at a reduced level of disclosure.

[2010] A.J. No. 666 (AB Prov. Ct); See also R. v. Hoffman, et al., [2006] O.J. No. 5162; leave denied 41 M.V.R. (5th) 52 (Ont.C.A.)

[13] The matter before me is a speeding charge issued as a Part 1 offense. It is an absolute liability offense. There is no evidence before this court to suggest that it is anything other than minor and routine. Although the allegation is of a higher speed violation the consequences are of a fine. If convicted Mr. Atis may face collateral consequences imposed by the Ministry of Transportation related to demerit points. The officers notes included in the application record encompass 3 half pages and 4 lines in the officer's note book. It is the very type of offense that the court in Collins suggests is appropriate for a "reduced level of disclosure". The request for the records here is based on a bald assertion that it would assist in cross examination of the officer. There is no further suggestion or evidence for the court to look to in assessing the potential likely relevance of the requested disclosure. The request as such is speculative. To order McNeil reporting in this type of matter without a basis for the assertion of likely relevance beyond the mere speculation offered here would open the floodgates to protracted, complicated processes that the POA seeks to avoid.

[14] As such, the request is denied.

Request 3: The Users Manual of the Laser Device

[15] The defense submits that it is necessary to have a copy of the entire manual to ensure that the laser device was stored, handled, charged and maintained in a proper fashion. The defense argues that failure to follow the guidelines in the manual may lead to the device not working properly and may then show that the device was not working properly on the date in question. The defense argues disclosure of the entire manual is appropriate, which he would be willing to pay for copies of and sign an undertaking regarding non-disclosure of same. In the alternative, the defense argues, at a minimum, it is necessary to have the sections that deal specifically with storage, handling, charging and maintenance for a proper assessment of the device's operation on that day.

[16] The prosecution submits that the manual is properly characterized as a third party record and the applicant would need to make a third party records application in order to obtain further material. The prosecution in this matter has supplied what it deems to be the relevant pages relating to the device in this case.

[17] Shortly before this matter was argued before me on January 31, 2017, Justice Healey of the Superior Court of Justice released his judgment in the case of York (Regional Municipality) v. McGuigan, 2017 ONSC 436 (Ont. S.C.). That matter also involved an allegation of speeding. The defense therein requested disclosure including the testing and operating procedures of the speed measuring device. The prosecutor's office advised that manuals of speed measuring devices could be viewed at their office.

[18] His Honour held that:

… in this case the testing procedures did not qualify as a consequence of the investigation of Mr. McGuigan. In the words of Watt J.A., "the information was not created, produced or even located during the investigation of the respondent and his alleged offences. The records played no role in the acquisition of any evidence available for proffer in the prosecution of the respondent": Jackson, at para. 95.

[19] Therefore unless the records can be deemed "fruits of the investigation" there is no obligation on the prosecution to disclose them as part of the routine disclosure. Supra, para 32. His Honour went on to indicate that this is the case even if there is a "reasonable possibility that the disclosure may assist the defendant in … [making] full answer and defense." Supra, para 32.

[20] The defense here argues that the manual should not be classified as a third party record as it effectively allows the prosecution to "hide" materials by asserting that they are not in their possession. The Court in McGuigan indicated that an O'Connor application would need to be brought by the defense if they seek more significant portions of the manual. See supra, para 34. The case of McGuigan is binding upon this court. In my view it is entirely on point with the facts of this matter. Furthermore, the prosecution has voluntarily supplied the relevant portions of the manual to the defendant, Mr. Atis. If Mr. Atis wished to have the entire manual a third party records application should have been brought.

[21] However, as I have the disclosure argument before me at this time and both counsel have alluded to both an O'Connor application and the "likely relevance" test, I should indicate the following: the first stage of the third party records process is a finding that the material is "likely relevant". This test is meant to be a significant but not onerous burden upon the defense. R. v. Jackson, 2015 ONCA 832. There must be a reasonable possibility that the information is logically probative to an issue at trial. Supra, para 129.

[22] Counsel for the defense submits that the likely relevance test has been satisfied. Counsel asserts the material may show that the device was not operating properly on the day on question. He further asserts that non-disclosure will allow full answer and defense and eliminate the appearance that the "deck is stacked against defendants" in these types of cases. And that disclosure should be ordered to hold the prosecution to the "spirit" of their Charter obligations.

[23] The cases indicate that a principled approach is necessary in assessing the matter akin to the requirements of section 278.3(4) of the Criminal Code. Jackson, supra, para 139. In Jackson, the court indicates that: the following assertions are not sufficient on their own to establish likely relevance to the issue of whether the approved instrument was malfunctioning or was operating improperly …

(a) that the record exists;

(b) that the record relates to the instrument used in the incident that is the subject matter of the proceedings; …

(d) that the record may disclosure a prior malfunctioning of the instrument; or

(e) that the record may relate to the credibility of the operator of the instrument.

[24] The likely relevance standard is to avoid "speculative, fanciful … unmeritorious … requests for production." Jackson, para 127. It is not a balancing of competing interests to determine whether the threshold has been met. McNeil, para 32. In my view, counsel wishes this court to balance the competing interests in my assessment of the likely relevance standard. I decline to do so. Further, nothing in the materials provided leads me to believe that there is any air of reality to the assertion that the device was not working properly that day. In my view, similarly to the argument made in Jackson, the assertions made in this matter are precisely the assertions listed above, particularly at para. (d). The suggestion here is nothing short of speculative.

[25] As such, the request is denied.

Request 4: Calibration and Maintenance History of the Speed Measuring Device

[26] The defense asserts that the calibration and maintenance history of the device is required to assess whether or not the device has been maintained in accordance with the manufacturer's guidelines. This in turn will inform whether the unit was functioning properly. The defense submits that without the material the ability to make full answer and defense is impaired. The prosecution submits that the materials are also a third party record for which an application should be brought.

[27] The parameters of the disclosure request in Jackson included service, usage and calibration records of the Intoxilyzer. Those materials were also found to be third party records. In this case, no additional argument is made regarding these records from the argument I have already addressed in my ruling regarding the provision of the manual. On the same basis as the request for the manual, I find that the assertions made regarding the calibration and maintenance history do not meet the likely relevance standard. There is nothing to indicate that the device was not working properly. The request here in my view is entirely speculative and without foundation. As such, the request is denied.

Request 5: Officer's Training Record

[28] The defense initially sought information relating to the Officer's training record relating to when he was trained and qualified and any additional courses he has taken in order to maintain his qualifications. The prosecution agreed in the course of the hearing that the date of qualification and whether he was qualified on the date of the alleged offense would be provided. Should further issues arise in this regard, the parties are invited to indicate.

Conclusion and Next Steps

[29] Trial has been scheduled next in this matter on June 2, 2017 and the matter is remanded to that date in M3 at 10:30.

Released: April 24th, 2017

Signed: Justice of the Peace V.N. Fisher-Grant