Her Majesty the Queen v. Foisy [Indexed as: R. v. Foisy]

51 O.R. (3d) 161

[2000] O.J. No. 4322

Docket No. C33391

Court of Appeal for Ontario

Finlayson, Weiler and Abella JJ.A.

November 17, 2000

Criminal law -- Procedure -- Stay -- Trial judge staying proceedings on own motion on basis of Crown's failure to make timely disclosure -- Trial judge not providing Crown with notice or opportunity to address remedy -- Crown denied procedural fairness -- Trial judge erred in staying proceedings on basis of non-disclosure in absence of evidence of irreparable prejudice to accused or abuse of process -- Trial judge erred in considering pre-trial delay in determining that stay of proceedings was warranted for non-disclosure -- Stay set aside.

Crown -- Disclosure -- Criminal proceeding -- Trial judge staying proceedings on own motion on basis of Crown's failure to make timely disclosure -- Trial judge not providing Crown with notice or opportunity to address remedy -- Crown denied procedural fairness -- Trial judge erred in staying proceedings on basis of non-disclosure in absence of evidence of irreparable prejudice to accused or abuse of process -- Trial judge erred in considering pre-trial delay in determining that stay of proceedings was warranted for non-disclosure -- Stay set aside.

The accused was charged with criminal negligence causing death following a motor vehicle accident. The trial judge, acting as a judicial pre-trial judge, held a number of meetings in which the progress of the police investigation into the accident was discussed. When the police failed to provide the Crown with a report on the results of a reconstruction test, the trial judge, without formally putting the Crown on notice or allowing him the opportunity to address the sanction he had in mind, had the accused arraigned and stayed the proceedings on the basis of the Crown's failure to make timely disclosure. The Crown appealed.

Held, the appeal should be allowed.

In proceeding as he did, the trial judge denied the Crown the basic principles of procedural fairness. Further, he erred in staying the proceedings on the basis of non-disclosure in the absence of evidence of irreparable prejudice to the accused or abuse of process on the part of the police or the Crown. He also erred in considering the pre-trial delay in determining that a stay was warranted for the non-disclosure. In the absence of an application and supporting materials which made out a violation of s. 11(b) of the Canadian Charter of Rights and Freedoms, pre-trial delay is not a relevant consideration when fashioning a remedy for non-disclosure.

APPEAL by the Crown from a stay of proceedings.

Cases referred to R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, 83 Alta. L.R. (2d) 193, 130 N.R. 277, [1992] 1 W.W.R. 97, 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277 Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b)

Erika Chozik, for appellant. Miles M. Halberstadt, Q.C., and Ruth Roberts, for respondent.

The judgment of the court was delivered by

[1] FINLAYSON J.A.: -- The respondent was charged that, on or about February 3, 1999, in the City of Toronto, he did by criminal negligence cause the death of Walter Sprange contrary to the Criminal Code, R.S.C. 1985, c. C-46. It was alleged that while operating a tractor-trailer, he went through a red light on Highway 401 in Etobicoke and collided with a motor vehicle, killing its 78-year-old driver.

[2] The accused first appeared in bail court on February 4, 1999, and the matter was put over several times until November 25, 1999. On that date, Justice Derek T. Hogg of the Ontario Court of Justice stayed the charge on his own motion. The Attorney General of Ontario appeals that determination.

[3] While there may be some cases where the trial judge is entitled to invoke the Canadian Charter of Rights and Freedoms ("Charter") on behalf of the accused, this was not one of them. The Crown, through the police officers investigating the accident, was attempting to obtain information from the respondent's employer about the tractor-trailer that he had driven on the morning in question. It had undertaken to provide this information to the defence, once it received it, as part of its disclosure obligations. The Crown also stated that the information might be useful in its screening process designed to review the appropriateness of the charge.

[4] While both parties and the trial judge had expressed impatience with police delays in obtaining this information from the employer, there is no suggestion on the record that defence counsel proposed to ask for the ultimate sanction of a stay of the proceedings because of the Crown's failure to make timely disclosure. He appeared to be sanguine that the screening process would result in setting a trial date or the withdrawal or reduction of the charge.

[5] The trial judge was acting as a judicial pre-trial judge and held a number of meetings in which the progress of the police investigation was discussed. He announced that he would remain seized of the matter. He appears to have the same impression as that of the defence counsel and expected that the anticipated material might lead to a disposition of the matter. In this court, counsel for the respondent pointed out that the case for the Crown was very weak and this was made evident to the trial judge by Crown counsel in his comments at one or more of these meetings. This is why an alternative resolution to a trial on the present charge was a live issue.

[6] On November 25, 1999, after the police failed to provide the Crown with a report on the results of a reconstruction test, the trial judge, without formally putting Crown counsel on notice, or allowing him the opportunity to address the sanction that he had in mind, instructed the clerk of the court to arraign the accused. The respondent was arraigned, the charge was read by the clerk, he was put to his election and he elected to be tried by the provincial court judge. The following ensued:

CLERK OF THE COURT: How do you plead to this charge, guilty or not guilty?

THE ACCUSED: Not guilty.

THE COURT: Yes, well, disclosure has not come through. Stinchcombe and countless decisions of my own show the right of the citizen is paramount to that of the State. If the State cannot provide the Crown Attorney with the evidence to prosecute a case of this magnitude when someone has allegedly killed someone while driving a motor vehicle, then the right of the citizen is paramount and I have no hesitation but to stay these proceedings. It is an affront to the administration of justice and the Charter of Rights. That's why the Charter of Rights was put into place. You're free to go.

MR. GAYNE: Could the two memos I passed up to the Court be part of the record, please?

EXHIBIT #1: Memo, produced and marked.

MR. HALBERSTADT [Defence Counsel]: That was a dismissal, was it?

[7] In proceeding as he did, the trial judge denied the Crown the basic principles of procedural fairness in Charter litigation. Counsel for the respondent submits that what the trial judge did in staying the proceedings was to invoke his inherent jurisdiction to control the proceedings before him. However, this is not what he purported to do. The trial judge invoked the principle in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, 83 Alta. L.R. (2d) 193, requiring the Crown to make full disclosure for the purposes of trial. Even if he thought that he was case managing, the trial judge was still obliged to proceed in accordance with the principles of natural justice. If the trial judge was of the view that the Crown was simply stalling with respect to the screening process, the appropriate solution was to set a date for trial. Signalling the defence that he was prepared to terminate the proceedings once vested with the jurisdiction to do so does not fall under the rubric of controlling the proceedings before him.

[8] Further, the court agrees with the Crown that the trial judge erred in staying the proceedings on the basis of non- disclosure where there was no evidence that the respondent had suffered irreparable prejudice or that the actions of the Crown or the police amounted to an abuse of process. We also agree that the trial judge erred in considering the pre-trial delay in determining that a stay of proceedings was warranted for the non-disclosure. In the absence of an application and supporting materials which make out a violation of s. 11(b) of the Charter, pre-trial delay is not a relevant consideration when fashioning a remedy for non-disclosure. Furthermore, the total pre-trial delay of 93/4 months in this case, when assessed in light of the governing principles, was not unreasonable.

[9] Accordingly, the appeal is allowed, the stay is set aside and a trial of this matter is ordered.

Appeal allowed.