Her Majesty the Queen v. Felderhof

[Indexed as: R. v. Felderhof]

68 O.R. (3d) 481

[2003] O.J. No. 4819

Docket No. C39168

Court of Appeal for Ontario

Carthy, Doherty and Rosenberg JJ.A.

December 10, 2003

Courts -- Judges -- Conduct of trial -- Judge's trial management power -- Incivility -- Prosecution of charges of insider trading -- Prosecution alleging that trial unfair -- Prosecution alleging that trial judge had lost jurisdiction by interfering with presentation of prosecution's case -- Prosecution alleging that trial judge had lost jurisdiction by failing to rule on admissibility of evidence -- Prosecution alleging that trial judge lost jurisdiction by failing to restrain uncivil attacks by defence counsel -- Application for prohibition and certiorari dismissed.

Trial -- Conduct of trial -- Judge's trial management power -- Incivility -- Prosecution of charges of insider trading -- Prosecution alleging that trial unfair -- Prosecution alleging that trial judge had lost jurisdiction by interfering with presentation of prosecution's case -- Prosecution alleging that trial judge had lost jurisdiction by failing to rule on admissibility of evidence -- Prosecution alleging that trial judge lost jurisdiction by failing to restrain uncivil attacks by defence counsel -- Application for prohibition and certiorari dismissed.

The Ontario Securities Commission charged JF with insider trading and authorizing or acquiescing in misleading press statements arising out of the affairs of Bre-X Minerals Ltd. The prosecution was before Hryn J. of the Ontario Court of Justice. Mr. Naster was one of the prosecutors, and Mr. Groia was trial counsel for JF. The relationship between the counsel during the trial was acrimonious and uncivil; Mr. Groia frequently and abrasively alleged that the conduct of the prosecution and Mr. Naster was improper.

Early in the trial, the prosecution applied to have a large number of documents admitted into evidence (the "omnibus document motion"). The positions and concessions of the parties with respect to this motion shifted and, on day 67 of the trial, the prosecution interpreted a statement by Hryn J. as a ruling that the prosecution could not tender its documents by various categories but had to call witnesses to give oral testimony and, particularly, Dr. K, a former Bre-X director, as the next witness. The effect of the ruling was to postpone the omnibus document motion and require the prosecution to prepare binders of those documents it intended to tender during Dr. K's evidence.

After 70 days of the trial and partially completed testimony from two witnesses, the Crown applied for prohibition and certiorari to halt the prosecution and for an order that the trial begin anew before another judge. The prosecution submitted that Hryn J. lost jurisdiction and undermined the prosecution's rights to a fair trial by: (1) interfering with the presentation of the prosecution's case; (2) failing in his duty to rule on the admissibility of evidence; and (3) failing to restrain the uncivil attacks by defence counsel.

Campbell J. dismissed the application and dismissed JF's request for costs. The prosecution appealed. JF appealed the order as to costs.

Held, the appeals should be dismissed. [page482]

The core issue with respect to the submission that there was interference with the conduct of the prosecution's case was whether the trial judge had the power to require the prosecution to delay the omnibus document motion. As an incident of a judge's common law and inherent power to control the proceedings, a trial judge has a general power, which must be exercised with care, to manage the trial and to promote the efficient use of court time. Campbell J. did not err in holding that a trial judge has a trial management power that would permit the rulings made in this case. This includes the power to require the prosecution to call its evidence in a particular order. Only if the prosecution has been unfairly or irreparably damaged by the trial judge's order can it be said that the trial judge exceeded his or her jurisdiction.

Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. One of the evolving and social realities is that litigation has become more complex and trials longer. Another reality is the impact of the Canadian Charter of Rights and Freedoms. A court must have the procedural tools to ensure its process is effective and responsive to a broad remedial jurisdiction under the Charter. Contrary to the submissions of the prosecution, recognizing this power would not undermine the adversary system. Further, it is necessary to put recognized limits on a court's role in reviewing prosecutorial discretion into context. These limits concern decisions made as to whether a prosecution should proceed, and courts have always shown a high level of deference to such decisions, assuming a power to interfere only where the decision is made in bad faith or for improper motives or would involve an abuse of process. Decisions that govern a prosecutor's tactics or conduct before the court do not fall within the scope of prosecutorial discretion.

Turning to the submission that the trial judge failed in his duty to rule on the admissibility of evidence, this issue revolved around Mr. Groia's novel argument that he could tender any document to any witness provided that the document had been disclosed to the defence but not tendered by the prosecution because, by failing to tender, the prosecution was implicated in an abuse of process. Every time the prosecution objected to his tendering a document, Mr. Groia alleged that the defence was being treated unfairly and that the prosecution was interested only in a conviction and not a fair trial. The trial judge, however, did not make any jurisdictional error. The real consequence of the failure to rule on the prosecution's objections was that it gave defence counsel an excuse to continue his submissions about perceived injustices. There being no jurisdictional error, Campbell J., on the motion for prohibition, was right not to interfere. However, to provide assistance for the resumption of the trial, defence counsel was wrong to assert that because the prosecution concedes that a document is relevant and authentic, the defence may tender it to any witness without regard to whether the witness knows anything about the document. The admissibility of the document remains subject to the rules of evidence.

Campbell J. was correct in concluding that the trial judge had not made any jurisdictional error with respect to the incivility of defence counsel and defence counsel's wrong views about what constituted improper prosecutorial conduct. There is nothing wrong in a prosecutor seeking a conviction. A prosecutor is not duty bound to introduce all possible documents in examination of its witness and is not acting improperly in objecting to the admission of inadmissible evidence. While the defence has a right to make allegations about abuse of process and prosecutorial misconduct, these allegations must have some foundation in the record, there must be some possibility that the allegations will lead to a remedy and the allegations should be made at the appropriate time in the proceedings. [page483] Defence counsel should make submissions without the rhetorical excess and invective employed in this case. Counsel are to treat witnesses, counsel and the court with fairness, courtesy and respect. Submissions should be made civilly and with professionalism. This professionalism is not inconsistent with vigorous and forceful advocacy. Unfair and demeaning comments diminish the public's respect for the court and the administration of criminal justice and thereby undermine the legitimacy of the results of the adjudication. The trial judge's response to Mr. Groia's improper rhetoric, however, did not deprive the trial judge of jurisdiction. The prosecution was not prevented from having a fair trial. The prosecutors were not prevented from fulfilling their duties by the conduct of defence counsel.

APPEALS from an order dismissing an application for prohibition and certiorari and denying the responding party costs of the application.

Cases referred to Canada (Minister of Citizenship and Immigration) v. Tobiass (1997), 1997 322 (SCC), 131 F.T.R. 230n, [1997] 3 S.C.R. 391, 151 D.L.R. (4th) 119, 218 N.R. 81, 118 C.C.C. (3d) 443, 10 C.R. (5th) 163, 14 C.P.C. (4th) 1; Krieger v. Law Society (Alberta), [2002] 3 S.C.R. 372, 2002 SCC 65, 217 D.L.R. (4th) 513, 293 N.R. 201, [2003] 1 W.W.R. 193, 168 C.C.C. (3d) 97, 4 C.R. (6th) 255, 7 Alta. L.R. (4th) 1, [2002] S.C.J. No. 45 (QL); Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.); Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, 69 O.R. (2d) 448n, 35 O.A.C. 161, 60 D.L.R. (4th) 609, 98 N.R. 321, 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, 88 C.R.R. (2d) 189, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316 (sub nom. Ontario v. 974649 Ontario Inc.); R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, 188 N.B.R. (2d) 161, 146 D.L.R. (4th) 437, 210 N.R. 197, 480 A.P.R. 161, 114 C.C.C. (3d) 481, 7 C.R. (5th) 51; R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, 9 O.R. (3d) 544n, 95 D.L.R. (4th) 595, 142 N.R. 1, 11 C.R.R. (2d) 193, 76 C.C.C. (3d) 124, 15 C.R. (4th) 66; R. v. Foisy (2000), 2000 16959 (ON CA), 51 O.R. (3d) 161, 6 M.V.R. (4th) 205 (C.A.); R. v. Kutynec (1992), 1992 12755 (ON CA), 7 O.R. (3d) 277, 8 C.R.R. (2d) 300, 70 C.C.C. (3d) 289, 12 C.R. (4th) 152 (C.A.), affg (1990), 1990 6673 (ON SC), 74 O.R. (2d) 205, 50 C.R.R. 311, 57 C.C.C. (3d) 507, 78 C.R. (3d) 181 (Dist. Ct.); R. v. Leduc (2003), 2003 52161 (ON CA), 66 O.R. (3d) 1, 108 C.R.R. (2d) 337, 176 C.C.C. (3d) 321, [2003] O.J. No. 2974 (C.A.), revg (2002), 2002 14931 (ON SC), 98 C.R.R. (2d) 372 (Ont. S.C.J.), revg (2001), 2001 28327 (ON SC), 84 C.R.R. (2d) 200 (Ont. S.C.J.); R. v. McMillan, 2003 52178 (ON CA), [2003] O.J. No. 3489 (QL), 176 O.A.C. 215 (C.A.); R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1 (sub nom. R. v. O'Connor (No. 2)); R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, 117 Nfld. & P.E.I.R. 269, 165 N.R. 241, 365 A.P.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161; R. v. Stinchcombe, 1991 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; R. v. Torbiak and Campbell (1974), 1974 1623 (ON CA), 18 C.C.C. (2d) 229, 26 C.R.N.S. 108 (C.A.); R. v. Williams (1985), 1985 113 (ON CA), 50 O.R. (2d) 321, 7 O.A.C. 201, 14 C.R.R. 251, 18 C.C.C. (3d) 356, 44 C.R. (3d) 351 (C.A.); R. v. Xenos (1991), 1991 3455 (QC CA), 70 C.C.C. (3d) 362 (Que. C.A.); Rondel v. Worsley, [1967] 3 All E.R. 993, [1967] 3 W.L.R. 1666, 111 Sol. Jo. 927, [1969] 1 A.C. 191 (H.L.); Sorger v. Bank of Nova Scotia (1998), 1998 3715 (ON CA), 39 O.R. (3d) 1, 160 D.L.R. (4th) 66 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 24(1) Provincial Offences Act, R.S.O. 1990, c. P.33, s. 142(5) Securities Act, R.S.O. 1990, c. S.5 Rules and regulations referred to Law Society of Upper Canada, Rules of Professional Conduct, Rules 4, 6 Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [page484] Authorities referred to Maloney, A., Q.C."The Role of the Independent Bar", 1979 Law Society of Upper Canada Special Lectures 49 Martin, G.A."The Practice of Criminal Law as a Career" reprinted in 2002 Law Soc'y Gaz. 93 Martin, G.A., Q.C."The Role and Responsibility of the Defence Advocate" (1970) 12 C.L.Q. 376 Morden, J., Address (Call to the Bar, 2001) Thursday, February 22, 2001, Roy Thomson Hall, Toronto Nagorney, K.A."A Noble Profession? A Discussion of Civility Among Lawyers" (1999) 12 Geo. J. Legal Ethics 815 Ontario, Defining Professionalism (Chief Justice of Ontario Advisory Committee on Professionalism, Working Group on the Definition of Professionalism, 2001)

David W. Scott, Q.C., Michael Code and Ian R. Smith, for appellant. Brian H. Greenspan, Joseph P. Groia, Stanley G. Fisher and Kevin J. Richard, for respondent (respondent in appeal). Milan Rupic and Riun Shandler, for intervenor The Attorney General for Ontario. Chris G. Paliare and Andrew K. Lokan, for intervenor Criminal Lawyers' Association. Paul J.J. Cavalluzzo, for intervenor Ontario Crown Attorneys' Association.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The respondent to this appeal is facing eight counts of violating the Securities Act, R.S.O. 1990, c. S.5 arising out of the affairs of Bre-X Minerals Ltd. The Ontario Securities Commission charged the respondent, a senior officer in Bre-X, with insider trading and authorizing or acquiescing in misleading press statements. After 70 days of trial, counsel for the prosecution took the unusual step of applying for prohibition and certiorari to halt the prosecution. Counsel for the Ontario Securities Commission, who are conducting the prosecution, seek to prohibit the continuation of the proceedings before Hryn J., to quash rulings he made and ask for an order that the trial begin anew before another judge of the Ontario Court of Justice. The prosecution alleges that the trial judge made a number of serious errors that have deprived him of jurisdiction to proceed and undermined the appellant's right to a fair trial. Fundamental to its position is the allegation that the trial judge has failed in his [page485] duty to curb the uncivil conduct of the respondent's counsel. The prosecution also alleges that the trial judge has not made evidentiary rulings when he should have and which were necessary to the presentation of the prosecution case and has improperly interfered in the conduct of the prosecution case.

[2] Campbell J. heard the application and in extensive and careful reasons he dismissed the application. He found no jurisdictional error. I agree with that conclusion. The respondent sought costs of the motion. Campbell J. dismissed that application and the respondent appeals from that order. I would dismiss that appeal.

OVERVIEW

[3] At the core of this appeal is the question of the admissibility and management of documents that the prosecution and the defence seek to tender to advance their respective cases. There are a huge number of documents in this complex case. These documents have been the source of concern, confusion and allegations since the charges were laid. Trial counsel for the respondent, Mr. Groia, set the tone for what would be an increasingly acrimonious proceeding when in a letter to prosecuting counsel in October 2000 he not only expressed the opinion that the prosecution had not complied with its disclosure obligations in accordance with R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1, but went on to level the serious allegation that the prosecution "has been carried out to date with a 'win at any costs' mentality".

[4] Then on October 18, 2000, the third day of the trial and in the course of a motion to stay the charges and, in the alternative, for complete disclosure, prosecuting counsel began a protracted cross-examination of a junior lawyer in defence counsel's office. That lawyer had filed an affidavit that did little more than produce the various pieces of correspondence concerning the disclosure issue. Nevertheless, prosecuting counsel went on to cross-examine this lawyer for a day and a half. The cross-examination was protracted and largely irrelevant. The affidavit and the correspondence spoke for themselves. The respondent's counsel objected to the cross- examination making the seemingly valid point that the cross- examination was argumentative and was not eliciting relevant information. Prosecuting counsel stood on his right to fully cross-examine the junior lawyer on his affidavit. The trial judge permitted the cross-examination to continue and, as I have said, it continued for a day and a half.

[5] Thus, within a few days, it was apparent that this was going to be a difficult and hard-fought trial. Because of the positions both [page486] parties took with increasing fervour and resolution, there was probably little hope that much would be accomplished through co-operation. The submissions by counsel, especially Mr. Groia, became increasingly strident.

[6] In his ruling on November 15, 2000, Day 16 of the trial, the judge found that the prosecution had not fulfilled all of its disclosure obligations and he ordered the prosecution to make complete disclosure. Thereafter, the relationship between counsel rapidly deteriorated and the handling of the thousands of documents was left in limbo. As we understand it, both the prosecution and defence had ringed the trial courtroom with almost 100 binders containing thousands of documents. Whether those documents were admissible and, if so, how they might be proved became a central point of contention between the parties.

[7] A singular problem with the documents is that defence counsel seemed to misunderstand the difference between documents that were to be part of the prosecution case and documents that the prosecutor was required to disclose to the defence. Some statements made by one of the prosecuting counsel prior to the trial, on December 22, 1999, in the course of an earlier disclosure motion, may have exacerbated this misunderstanding. At that time, prosecution counsel told the trial judge that part of his obligation as a prosecutor was "to ensure that all relevant materials are placed before you". The defence developed the theme from this comment that whenever the prosecution failed to introduce a document that the defence thought was relevant and helpful to the defence, the prosecution was in breach of its duty and that this breach of duty could potentially lead to a stay of the charges for abuse of process. The defence also seemed to think that any document in the disclosure briefs could be admitted into evidence as a kind of abuse of process exception to the hearsay rule. This led to the defence presenting a prosecution witness with many documents about which he had no knowledge and which were not admissible through his testimony. The proceedings were thereafter peppered with allegations of prosecutorial misconduct.

[8] A further problem with the documents is that the prosecution looked to admissions by the defence about the authenticity and provenance of many of the documents to justify their admissions. The defence, however, seemed to shift its position in response to perceived changes in position by the prosecution. Early on in the trial, the prosecution applied to have a large number of documents admitted in what can conveniently be referred to as the omnibus document motion. But, as I read the record, it abandoned the attempt and did not seek a ruling from the trial judge on the admissibility of the various categories of documents. [page487]

[9] By Day 67 of the trial the prosecution had decided that it needed a ruling on the admissibility of most of its documents. This brought matters to a head from the point of view of the prosecution. It interpreted a statement from the trial judge as a ruling that it could not tender its documents but had to call witnesses to give oral testimony. During the scheduled adjournment following Day 70 of the trial, the prosecution brought the application for prohibition and certiorari. By this time, the Crown had called only two witnesses. Rolando Francisco, the executive vice-president of Bre-X, began testifying on Day 25. That testimony has been interrupted by frequent arguments over admission of documents and latterly by Mr. Francisco's unavailability due to urgent family matters and then illness. The defence has not finished cross-examining him.

[10] The second witness is Dr. Kavanagh, a former Bre-X director. He testified on Days 69 and 70. His testimony would have continued after the scheduled break but for the prosecution's application.

[11] In addition to the documents problems, counsel's conduct has been a problem at this trial. The application judge found that Mr. Groia made uncivil attacks on the prosecutors, especially Mr. Naster. He set out many of the comments in his reasons for judgment and I need not repeat them at length in these reasons. In summary, the comments fall within a number of categories. Mr. Groia frequently resorted to sarcasm. He belittled the efforts of the prosecutors to prepare their case and accused them of laziness. He suggested that the prosecutors had breached their promises and misled the judge. The trial judge rarely intervened to restrain counsel. On the other hand, counsel for the prosecution accused the defence of filing a misleading affidavit and wasting the court's time with its abuse of process motion.

[12] The appellant submits that the trial judge lost jurisdiction because he failed in his obligation to restrain the uncivil attacks by defence counsel, interfered with the prosecution's presentation of its case and failed in his duty to rule on the admissibility of evidence. The appellant submits that the combined effect of these various errors produced an unfair trial and created a reasonable apprehension of bias in the trial judge. As I have said the application judge dismissed the application. I will set out some of his reasons below in greater detail. But, dealing specifically with the civility issue, the application judge referred to the leading authority in this province, Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.). He then held [at para. 27] that"Even if counsel's litigation style, as alleged by the prosecution, [page488] is abusive and sometimes personally nasty, the judge does not lose jurisdiction unless it prevents a fair trial."

[13] Mr. Groia was prone to rhetorical excess and sarcasm. That manner of making his submissions was unseemly and unhelpful. While I do not underestimate the impact of such conduct, I accept the finding of the application judge that it did not deprive the prosecution of a fair trial.

[14] The application judge also found that the trial judge had jurisdiction to make the direction to the prosecution to call Dr. Kavanagh rather than proceed to an omnibus documents motion. He also found that the trial judge did not lose jurisdiction by failing to make evidentiary rulings.

[15] As I have said, I agree with the result reached by the application judge and with a few minor exceptions with his reasons. Campbell J. has fully reviewed the progress of the trial and many of the relevant rulings by the trial judge and submissions by counsel in reasons reported at, [2002] O.J. No. 4103 (QL). I will therefore only refer to those parts of the record as may be necessary to explain my reasons for dismissing this appeal.

THE ERRORS ALLEGED BY THE PROSECUTION

1. Interference with Conduct of the Prosecution Case

[16] The appellant submits that Campbell J. erred in holding that the trial judge had the right to control the conduct of the prosecution by directing the order in which the prosecutors called evidence and, in particular, in ordering that the prosecution proceed with calling witnesses rather than with its omnibus documents motion. The appellant also submits that the trial judge had no jurisdiction to require it to list the documents it intended to present to Dr. Kavanagh and future witnesses and to take part in an out-of-court process of consents to documents on defence counsel's lists.

2. Duty to Rule on Evidence

[17] The appellant submits that Campbell J. erred in holding that the trial judge was entitled to defer his ruling on the admissibility of the documents and erred in failing or refusing to rule on the prosecution's objections to the admissibility of documents tendered by the defence in the course of cross- examination of prosecution witnesses.

3. Civility

[18] The appellant submits that Campbell J. made the following errors in his dealing with the issue of civility: [page489]

(i) In holding that counsel had the right to attack the integrity of the prosecutors at large outside the context of a specific motion, such as an abuse of process motion.

(ii) In holding that the trial judge had no duty to intervene to stop the allegations of misconduct and that the defence had the right to continue to make allegations of impropriety against the prosecution until it had laid a sufficient foundation for its abuse of process motion.

(iii) In holding that the defence conduct did not prevent the prosecutors from discharging their duties; that, in effect, the prosecutors should have simply toughened up and proceeded with the trial.

ANALYSIS

1. Interference with Conduct of the Prosecution Case

[19] From the prosecution's point of view, matters came to a head on Day 67 when the trial judge ruled that the prosecution was to call Dr. Kavanagh as its next witness rather than proceed with the prosecution's motion to tender the documents. As I understand it, the prosecution envisaged a three-step motion. First, it would tender and seek a ruling on the admissibility of those documents authored by the respondent. Second, it would tender and seek a ruling on the admissibility of the documents received, acknowledged or acted upon by the respondent. Finally, relying on the first two categories and the testimony of Mr. Francisco and possibly an O.S.C. investigator, it would tender and seek a ruling on the admissibility of documents as business records. In all, the prosecution hoped to avoid the admission of documents on a piecemeal basis during the testimony of various witnesses as had occurred during Mr. [Francisco]'s testimony. Rather, large classes of documents would be admitted and would form the heart of the prosecution case. It also hoped that by obtaining these rulings, the basis for admissibility would be clear, in the sense that it would be apparent which of the documents were admissible for their truth and which were admissible only for some limited non-hearsay such as to show the state of mind of a witness.

[20] The appellant submits that [the] application judge misapprehended the state of the proceedings and especially the prosecution's position with respect to the documents and erred in creating a trial management power that overrides the prosecution's right to present its case as it sees fit. The appellant submits that the application judge failed to deal with a line of cases that [page490] clearly show that, absent an abuse of process or a Canadian Charter of Rights and Freedoms breach, the manner in which the prosecution presents its case is within its discretion and is not subject to supervision by the trial judge. The appellant particularly relies upon the decisions of the Supreme Court of Canada in R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1; Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609; and R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, 146 D.L.R. (4th) 437.

[21] I will deal first with the submission that the application judge misapprehended the state of the proceedings. The application judge extensively reviewed the procedural background that lead to the ruling on April 2, 2001, Day 67 of the trial, that is at the core of this part of the appellant's argument. He concluded that by Day 67 matters were at an impasse. The prosecution wanted to proceed with its omnibus documents motion while the defence wanted the prosecution to call witnesses and introduce documents individually. The trial judge was concerned that the same factors that led to the abortive proceedings in January still applied.

[22] As the application judge noted, there is a dispute in the record as to what happened in January. The trial judge in proceedings on Day 67 and thereafter referred to his "ruling" in January that the documents motion be deferred until after witnesses had testified. The appellant submits that there never was a ruling. The application judge was of the view that it did not matter how the January proceedings are characterized. The prosecution contends otherwise since it sees a world of difference between its decision to abandon the attempt to introduce the classes of documents and a ruling that it could not proceed with such an attempt. My own review of the record is that the prosecution did indeed abandon the attempt and there was no ruling in January. However, I also agree with the application judge that in the end it does not matter. What is important are the reasons that led to the prosecution's action in January and the trial judge's reasons on Day 67 and following for the orders he made.

[23] The appellant submits that whatever may have been the position in January, it became clear during the cross- examination of Mr. Francisco that it was not possible to continue the trial without a ruling on the admissibility of the three classes of documents. The appellant also submits three additional points. By Day 67 or at least by Day 68: (1) it had the necessary concessions from the defence to be in a position to tender the documents, without the need to call witnesses; (2) unlike what may have been the state of affairs in January, the actual exercise of admitting the documents would not consume an inordinate amount of time; and (3) the prosecution had made a key concession that [page491] once a ruling had been made as to admissibility of a document, or rather, the inadmissibility of a document, it would not seek to revisit the ruling. This last point is of particular significance. It was the defence position on Day 67 that the January document motion broke down because it became apparent that even if the trial judge ruled a document was inadmissible, the prosecution reserved the right to try and have the document admitted later when it called witnesses. Thus, in January, it looked like a great deal of time would have been wasted on the document motion. Mr. Groia expressed the problem on Day 67 in these terms:

But if the Crown's position, when it used the word a few moments ago was that we were dealing with these as final rulings once and for all, subject always to your discretion to revisit that ruling, and they were happy with the record they had in terms of the evidence and they were saying essentially"We've got no more evidence" sure, let's deal with them. We're ready to deal with them on that basis. That was the same basis we were ready to deal with them in January. It was only when the Crown said"Oh, no, we've got to -- you know, we reserve the right to call more evidence if we don't get them in now" that the January motion ended up not being argued.

[24] The prosecutor made this concession clear in his submission to the judge:

Well, as it stands, I think my friend fairly characterized it -- that subject to Your Honour's right to revisit any ruling that you may make, we have no intention of renewing these applications or renewing these -- or revisiting these issues.

My friend has correctly acknowledged that you have a residual discretion that you may have to apply, but we have no intention -- we want to go forward and we want to deal with these issues now.

[25] It is the appellant's position that the application judge (and presumably the trial judge) did not properly appreciate the significant change in the landscape since January. As I have said, the application judge was of the view (at para. 157) that the proceedings had become deadlocked and that "something had to be done. The turning point had come." In his view, the trial judge had tried everything to move things along and to deal with the documents on a consensual expeditious basis. It was apparent because of the entrenched positions of the parties that there was no consensual expeditious way to deal with the documents. The prosecution wanted to proceed with the omnibus document motion, the defence wanted to hear live witnesses. The trial judge ruled that Dr. Kavanagh should be called. The salient part of his ruling is the following:

The Crown is again bringing an application that we have previously referred to as the omnibus documentary evidence application. I decided in January of this year that such application was not appropriate at that time because of [page492] several reasons: one, such application would take a substantial period of court time, likely months; two, such application would entail much duplication of what I will be hearing again in the trial; three, the issue of the admissibility of many of the documents will resolve itself as witnesses are called; four, I will be in a better position to make such determinations as I hear more of the evidence in this trial.

There has been no change since that determination in January that would lead me to alter that decision today.

The defence has suggested that they produce binders containing the documents they propose to put to Dr. Paul Kavanagh and future witnesses and provide them to the Crown. The defence would not otherwise be obliged to do so. The defence is not obliged to disclose the direction of their cross-examination.

The defence suggests the Crown do the same, that is produce binders of documents proposed to be put to Dr. Kavanagh in- chief, or provide lists of such documents.

Unlike the defence, the Crown has a disclosure obligation to give the defence a witness will say and inferentially a list of the documents to be tendered through that witness in- chief.

Both sides would then review the other's binders or lists with a view to determining which documents are not in dispute. This would shorten the examination in-chief and cross-examination of Dr. Kavanagh.

Many of the documents which the defence intended to put in through the witness, Mr. Francisco have now been marked as exhibits following a similar process, except that the process in marking the Francisco documents was done in open court. The process should not be done in open court. The court should simply be provided with a list of the documents not in dispute. This is the process we will follow with Dr. Kavanagh.

By definition, I cannot order the Crown or defence to consent to a document being marked as an exhibit and I have no intention to do so, but I can require and do require the Crown to follow this process. I here refer to the Crown alone, as opposed to Crown and defence because defence has suggested and agreed to this process and, as indicated above, this is part of the Crown disclosure obligation.

The Crown and defence may consent to or not object to all, some, or none of the documents listed by the other side. But if documents are not marked as not being in dispute and are later not objected to, I will ask for an explanation why the out of court process was not followed with respect to that particular document.

The issue now is whether we start with Dr. Kavanagh tomorrow, or whether we go through this 13-page list of defence objections to the proposed Felderhof documents, or whether this list of defence objections can also somehow be shortened. If we started with Dr. Kavanagh, his testimony will be interrupted for the three-week break that we are having in April and he then may continue or he may not continue, depending on whether Mr. Francisco does or does not return. I want to use up the days we have left this week which is three days and I want to make good use of that time, I'll listen to suggestions as to what we do tomorrow morning.

(Emphasis added) [page493]

[26] Thus, the trial judge gave four reasons for not permitting the prosecutor to proceed with the omnibus document motion:

1. The application would take a substantial period of court time;

2. The application would entail much duplication of what would be heard in the trial;

3. The issue of admissibility of many of the documents would resolve itself as witnesses were called; and

4. The trial judge would be in a better position to make such determinations as he heard more evidence.

[27] Later in the course of dialogue between the trial judge and counsel it became relatively clear that the prosecution could tender the documents signed by the respondent at this juncture; at least those to which the defence did not object, about 90 per cent. It is unclear whether the trial judge contemplated that there could be some process for dealing with the other 10 per cent to which the defence objected [See Note 1 at end of document].

[28] In the view of the application judge the trial judge's ruling did two things (at para. 168):

[I]t deferred the omnibus application in order to maintain progress, prevent duplication, and provide a better evidentiary foundation to determine the admissibility of the documents.

[I]t required the prosecution and the defence to produce to each other, binders of the documents they each proposed to put to Dr. Kavanagh and future witnesses, in order to prevent the problems that arose in the evidence of Mr. Francisco.

[29] In my view, it is not entirely clear that the application judge has misapprehended the record. In the two passages that I have set out from the submissions of prosecution counsel and defence counsel, it seems that there was a common understanding of the prosecution's position that the prosecution would accept the rulings as final, subject of course to the trial judge on his own motion revisiting the issue. However, the defence position was shifting throughout Days 67 and following, and some of the consents that the prosecution thought it had from the defence, and were necessary to deal with the omnibus document motion without calling evidence, were withdrawn. At the very least, it was open to the application judge to take the same view [page494] of the proceedings as did the trial judge that the omnibus documents motion would consume a great deal of time.

[30] I accept, however, that the trial judge may have been in error with respect to one of his reasons for deferring the omnibus document motion, namely the issue of duplication. As I have said, it seems relatively clear that, unlike the case in January, the prosecution was prepared to live with any ruling the trial judge made and would not attempt to relitigate the issue by calling witnesses to prove any documents that the trial judge ruled were not admissible during the omnibus document motion. I will deal with the effect of this error after considering the core issue on this aspect of the case, namely, whether the trial judge had the power to require the prosecution to delay the omnibus document motion.

[31] As indicated, the effect of the trial judge's ruling was to postpone the omnibus document motion and require the prosecution to prepare binders of those documents it intended to tender during Dr. Kavanagh's evidence. It would seem that the trial judge believed he had the power to delay the ruling because of the decision of the Supreme Court of Canada in R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, 76 C.C.C. (3d) 124. He also seemed to be of the view that he had the power to order the prosecution to produce the list of documents to be presented to witnesses because of the prosecution's disclosure obligations. I will deal with DeSousa first.

[32] DeSousa considered in part the procedure to be followed where an accused seeks to challenge the constitutionality of the provision under which he is charged. The Supreme Court held that generally speaking the trial judge ought to reserve the decision on the application until the conclusion of the case. Speaking for the court, Sopinka J. reasoned as follows, at pp. 954-55 S.C.R., p. 132 C.C.C.:

With rare exceptions that do not apply here a trial judge is empowered to reserve on any application until the end of the case. He or she is not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard. The decision whether to rule on the application or reserve until the end of the case is a discretionary one to be exercised having regard to two policy considerations. The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters: see R. v. Mills (1986), 1986 17 (SCC), 26 C.C.C. (3d) 481, 29 D.L.R. (4th) 161, [1986] 1 S.C.R. 863. The second, which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation: . . . Both these policies favour disposition of applications at the end of the case. In exercising the discretion to which I have referred, the trial judge should not depart from these policies unless there is a strong reason for so doing. In some cases the interests of justice necessitate an immediate decision. Examples of such necessitous circumstances include [page495] cases in which the trial court itself is implicated in a constitutional violation as in R. v. Rahey (1987), 1987 52 (SCC), 33 C.C.C. (3d) 289, 39 D.L.R. (4th) 481, [1987] 1 S.C.R. 588, or where substantial ongoing constitutional violations require immediate attention as in R. v. Gamble (1988), 1988 15 (SCC), 45 C.C.C. (3d) 204, [1988] 2 S.C.R. 595, 66 C.R. (3d) 193.

(Emphasis added)

[33] The opening language used by Sopinka J. is very broad and would appear to be authority for a judge to reserve on any application until the end of the case. I tend to the view that Sopinka J. was speaking of constitutional applications and similar types of applications. I do not think DeSousa on its own is authority for the kind of order that the trial judge made in this case. Rather, it seems to me that this case directly raises a question of the scope of a trial judge's authority to generally manage the trial and whether that can include a direction to the prosecutor to call his or her evidence in a certain order. The appellant says there is no such power and, as I have said, relies primarily upon the decisions in Power, Nelles and Cook.

[34] The application judge was of the view [at paras. 223-31] that the trial judge did have jurisdiction to proceed as he did:

There are many different ways for parties to present evidence and for judges to manage trials. It is common where the case for the prosecution depends essentially on documents, to address the admissibility of the documents at an early stage in the trial. To do otherwise raises problems of the kind encountered here; uncertainty as to the evidentiary status of documents tendered through witnesses in chief and documents put to witnesses in cross-examination.

There is an element of irony in the prosecution's present complaint. The judge, by deferring the ultimate document rulings, was doing exactly what the prosecution proposed at the very beginning of the trial. In light of the shifting positions of the parties on the appropriate way to lay the evidentiary groundwork for a massive documentary evidence admissibility hearing, and in light of the potential problems that would arise by proceeding with such an application before a fuller evidentiary foundation was laid, the trial judge was obliged to balance a number of factors. These factors include the trial efficiency benefits of proceeding immediately to the omnibus evidence application, the trial efficiency costs of doing so, and the trial efficiency costs and benefits of deferring it until more of a viva voce framework had been laid.

The applicant alleges that the postponement of the evidentiary rulings has produced a procedural nightmare. It has undoubtedly created uncertainty and some consequent difficulty. It might be said that most of the difficulties in this trial have been caused by the incessant and inappropriate bickering, bantering and sniping between counsel. But progress has been made in the trial and progress is reasonably expected on its resumption. It is impossible to say that the immediate launching of a months long omnibus documentary admissibility hearing would necessarily produce fewer problems.

There is no single right answer to this chicken and egg problem. One or the other has to go first and there is an inevitable cost with either choice. The [page496] trial judge has a discretion to determine, on balance, which is the fairest and most efficient way to proceed. The fact that arguments can be made for proceeding differently, or that another judge might on balance proceed differently, does not deprive the trial judge of jurisdiction to exercise his best judgment in the circumstances.

The trial judge has an enormous benefit, particularly in the middle of a trial, over the reviewing court which lacks the trial judge's immersion in the documents and the issues and the evolution of counsel's shifting positions as to the best way to proceed. After the trial is over an appellate court may be in a better position to say, in hindsight, whether one method of proceeding would have been better than the other. But that cannot be understood until the trial is over. It is impossible in this case at this stage to say that the position of the prosecution has been unfairly or irreparably damaged by deferring, until later in the trial, the omnibus document hearing [emphasis added].

This is a matter within the jurisdiction and judicial discretion of the trial judge, not an issue that attracts the extraordinary measure of intervention by this court in mid- trial. It is apparent that he made a rational exercise of discretion. . . .

The question therefore is not whether the judge was right in law. The question is not whether there was another way or even a better way to stage and structure the time of the complex evidentiary rulings. The question is whether the decision was irrational or unfair to the extent that he lost jurisdiction.

[35] Thus, the application judge held that the trial judge had the discretion to defer the omnibus evidentiary ruling and for the same reasons he held that the trial judge had the discretion to direct the prosecution to call its next witness. The appellant submits that the application judge provided no authority for recognizing this trial management power and failed to deal with the leading Supreme Court of Canada authorities that hold that there is no such power.

[36] In my view, the application judge did not err in holding that a trial judge does have a trial management power that would permit the rulings made in this case. I do intend, however, to set out in greater detail the legal basis for this power, especially for a court of statutory jurisdiction like the Provincial Offences Court. In my view, a trial judge does have and must have a power to manage the trial and that in exceptional circumstances that can even include a power to require the prosecution to call its evidence in a particular order. I also agree with the application judge (at para. 227) that only if "the prosecution has been unfairly or irreparably damaged" by the trial judge's order could it be said that the trial judge has exceeded his jurisdiction.

[37] The application judge interpreted the appellant's position as one contending for a purely adversarial approach where the trial judge is nothing more than a referee. The appellant does not [page497] take that position in this court. It recognizes that the trial judge must have a general power to "manage the trial, and promote efficient use of court time" as an "incident of the trial Judge's common law power to control the proceedings". However, the appellant draws the line at any attempt by the judge to supervise or "second guess" the prosecution in its decisions about calling evidence.

[38] Admittedly, this trial management power must be exercised with care. The decision of this court in Sorger v. Bank of Nova Scotia (1998), 1998 3715 (ON CA), 39 O.R. (3d) 1, 160 D.L.R. (4th) 66, demonstrates the dangers of an overly interventionist approach. At the beginning of the trial in the Sorger case, the trial judge told plaintiff's counsel to call certain evidence first. When both counsel expressed reservations about proceeding in that manner the trial judge said"With great respect, the two of you may be ad idem on this, but I'm running this trial. Normally I go along with what counsel agree on, but this may be just a waste of time." This court held, at p. 5 O.R., that it "was inappropriate to require the plaintiffs to begin in this way" and this was one of a number of incidents during the trial that led this court to find, at pp. 8-9 O.R., that "the cumulative effect is, in our view, unfortunately clear. A reasonable and informed observer would have a reasonable apprehension that the mind of the trial judge was closed to a fair and impartial consideration of the appellants' case. There is a reasonable apprehension of bias." However, I do not read the holdings in Sorger as being inconsistent with the court's trial management power, including a power, when appropriate to direct the order in which certain evidence should be called. The direction by the trial judge in that case at the opening of the trial was inappropriate. It was part of a pattern of conduct demonstrating impatience with the plaintiffs and a concern that counsel was wasting time to the point where there was a reasonable apprehension of bias.

[39] The context of this case is far different. The trial judge had spent 67 days of trial with the case. He was intimately familiar with the issues and the potential pitfalls of proceeding in the way suggested by the prosecution. Far from showing impatience or partiality to one side or the other this trial judge had shown considerable patience and restraint. But, he was of the view that something had to be done to bring the case back under control. This was not a demonstration of partiality but an exercise of a trial management power.

[40] Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for [page498] many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to control its own process.

[41] Even a statutory court, such as the Provincial Offences Court, has the implied power to control its own process. The modern approach to determining the scope of a statutory tribunal's powers is found in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, 206 D.L.R. (4th) 444. In that case, the court was concerned with the jurisdiction of the Provincial Offences Court to grant remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms. After noting, at para. 26, the "fundamental principle that statutory bodies may perform only those tasks assigned to them by Parliament or one of the provincial legislatures, and [that] in performing those tasks they have at their disposal only those powers granted to them expressly or impliedly", McLachlin C.J.C. said the following, at para. 38:

The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute's enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances. Instead, we recognize that the law speaks continually once adopted: Tataryn v. Tataryn Estate, 1994 51 (SCC), [1994] 2 S.C.R. 807, at p. 814; see also Interpretation Act, R.S.O. 1990, c. I.11, s. 4. Preserving the original intention of Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments, sensitive to evolving social and material realities. While the courts strive ultimately to give effect to legislative intention, the will of the legislature must be interpreted in light of prevailing, rather than historical, circumstances . . . .

(Emphasis added)

[42] One of the "evolving social and material realities" is that litigation, even in the Provincial Offences Court, has become more complex and trials longer. Part of this is a result of the greater complexity of society that produces cases such as this one, which are based on complex commercial transactions. The other reality is the impact of the Charter of Rights and Freedoms. It may be that this would have been a lengthy case before 1982. However, the Charter has introduced an additional level of complexity. It cannot be forgotten that these proceedings became so [page499] difficult, in part, because of the various Charter motions for disclosure and abuse of process. Although she was referring only to the impact of the Charter, it seems to me that the following comments of McLachlin C.J.C. at para. 41 of R. v. 974649 Ontario Inc. can have a broader application when attempting to define the implied powers of the Provincial Offences Court:

Moreover, forcing these courts and tribunals to function as if the Charter were never enacted, even where their operation squarely implicates Charter rights and freedoms, risks seriously (and unnecessarily) compromising their effective functioning. It may also impact the quality of justice rendered at the end of the day.

[43] Similarly, requiring a provincial offences court to function as if this complex securities regulation case were nothing more than a traffic violation would seriously compromise its effective functioning. As a result of R. v. 974649 Ontario Inc., the Provincial Offences Court has a broad remedial jurisdiction under the Charter. It seems to me that by necessary implication it must have the procedural tools to ensure its process is effective and efficient for the disposing of applications for any of those remedies. In R. v. 974649 Ontario Inc., at para. 93, McLachlin C.J.C. said"the role of the provincial offences court in the broader legal system, and particularly its role as a court of first instance, provide the most valuable insight into the powers the legislature intended it to exercise." The legislature has given to the provincial offences court jurisdiction to deal with these complex commercial cases, involving hundreds if not thousands of documents, and sometimes, although not always, involving complex Charter applications and remedies. In my view, the trial judge must have the power to control the procedure in his or her court to ensure that the trial is run effectively. Sometimes, the exercise of this power may mean that the trial judge will require counsel to proceed in a different manner than counsel desired.

[44] The appellant relies upon several cases from the Supreme Court of Canada as authority for the proposition that, short of an abuse of process, the trial judge had no jurisdiction to direct the manner or order in which it called its evidence. I will deal with those cases in the context of the three policy rationales that the prosecution advances to support its position.

(a) Separation of roles of counsel and trial judge

[45] The first rationale advanced by the appellant is based on the principles of the adversary system and in particular the separation of roles of counsel and the trial judge. The appellant rightly submits that the separation of roles assists in preserving [page500] adjudicative neutrality. The authorities repeatedly remind trial judges not to "enter the arena" lest the appearance of impartiality be compromised. A convenient statement of the rule is found in R. v. Torbiak and Campbell (1974), 1974 1623 (ON CA), 18 C.C.C. (2d) 229, 26 C.R.N.S. 108 (Ont. C.A.), at p. 230 C.C.C., where Kelly J.A. noted that the adversary system "requires that the trial Judge should confine himself as much as possible to his own responsibilities" (my emphasis). But, it is sometimes not possible for a trial judge to leave the conduct of a criminal or quasi-criminal case entirely to the parties. The trial judge must not take over the case and adopt a posture that appears to favour one side over the other. A judge who proposes to interfere with a prosecutor's tactics or the order of calling evidence must move cautiously to avoid any appearance of partiality. In general, the trial judge will leave it to counsel to call the evidence in the order and manner that they propose. A decision of the type made by the trial judge in this case that dramatically interfered with the order in which the prosecutor intended to call his evidence will not be taken lightly. Fairness concerns aside, it should only be taken because the trial judge is convinced that the prosecution's proposed way of proceeding will interfere with the orderly management of the trial. I cannot, however, accept the appellant's broad submission that the trial judge does not have this power as part of his or her power to manage the trial or that recognizing this power will undermine the adversary system. We have never had a purely adversary system. For example, the trial judge has the power, albeit a limited one, to call witnesses and to raise legal issues not advanced by the parties and to comment on evidence in a jury trial. Properly exercised, these powers do not interfere with the trial judge's established position of neutrality and impartiality.

(b) Division of powers

[46] The appellant's second rationale is based on the division of powers between the executive and the judiciary. As Justice L'Heureux-Dubé said in R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, at pp. 623, 627 S.C.R.:

That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review.

Such a situation [judicial review of prosecutorial discretion] would be conducive to a very inefficient administration of justice. Furthermore, the [page501] Crown cannot function as a prosecutor before the court while also serving under its general supervision. The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it. Judicial review of prosecutorial discretion, which would enable courts to evaluate whether or not a prosecutor's discretion was correctly exercised, would destroy the very system of justice it was intended to protect (United States v. Redondo-Lemos, supra, at p. 1300).

[47] These comments concerning the limits of judicial review of prosecutorial discretion must, however, be read in context. They principally concern decisions made in the exercise of the Attorney General's function in determining whether a prosecution should proceed. The courts have always shown a high level of deference to such decisions, assuming a power to interfere only where the decision is made in bad faith or for improper motives or would otherwise involve an abuse of the court's process. Thus, in Power the court was not prepared to interfere with Crown counsel's decision not to call any further evidence in the face of an adverse ruling where that decision did not constitute an abuse of process.

[48] A decision that is somewhat closer to the position advocated by the appellant in this case is R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, 146 D.L.R. (4th) 437 where L'Heureux-Dubé J., speaking for the court, again examined the role of the Crown in the conduct of the prosecution (at para. 19):

At the outset of the analysis, I believe it is helpful to place the issue in its proper context. In essence, the rule suggested by the respondent would force the Crown to call certain witnesses (assuming they were available and competent), regardless of their truthfulness, desire to testify, or of their ultimate effect on the trial. It is immediately apparent that such a duty, if it were to be established, would have a major impact upon the Crown's ability to conduct its own case. It would be a clear interference with the broad discretionary powers which are said to be within the purview of the Crown attorney, and which are at the very heart of the adversarial process. As a general principle, we have recognized that for our system of criminal justice to function well, the Crown must possess a fair deal of discretion. Moreover, this discretion extends to all aspects of the criminal justice system.

(Emphasis added)

[49] The issue in Cook was whether Crown counsel could be required to call the complainant in one of the counts charged against the accused. The accused contended that there was a rule of law requiring the Crown to call all witnesses essential to the unfolding of the narrative. The court held that, absent an abuse of process (or perhaps some violation of the Charter), there was no legal obligation on the prosecution to call any particular witness. Should the Crown fail to call an essential witness the consequence may be that the prosecution fails, but this cannot be transformed into a legal duty to call certain witnesses. [page502]

[50] At first blush, the trial judge's direction to call Dr. Kavanagh may appear to offend the rule in Cook. However, the trial judge's direction must be put in context. The trial judge had decided, rightly or wrongly, to defer the omnibus document motion until later in the trial. I agree with the application judge's interpretation of the direction (at para. 235):

The judge's direction to call Dr. Kavanagh next when the prosecution preferred to have the documentary application precede Dr. Kavanagh's evidence, is simply a consequence of the ruling to postpone the documentary application. It is no more than saying to the prosecutor "Call your next witness."

[51] The appellant submits that the application judge misapprehended the record. It submits that had it been able to proceed with the omnibus document motion it might never have needed to call viva voce witnesses such as Dr. Kavanagh. Thus, the effect of the ruling was to require the prosecutor to call a particular witness, directly contrary to the holding in Cook. This may very well have been the prosecutor's position. However, from my review of the record it is not clear that this was the position expressed to the trial judge. My reading of the record, especially on Day 67, is that the prosecutor wished to proceed with the documents motion because it believed that was the best use of time and, in the end, it would give it a much better idea of what it had to prove through those witnesses. I have not found a clear statement that the prosecution did not intend to call Dr. Kavanagh depending on the ruling in the documents motion. For example, prosecution counsel said the following on Day 67:

I've told Your Honour the absolute importance of the documents in the context of this case and why, in our respectful submission, it's important that we deal with these documents now, up front, before I spend a whole lot of this court's time on matters that at the end of the day may be entirely academic, depending on the documents. Because as I have said, if the defence position is right that you have to have a witness for every document, we've got a problem if Your Honour agrees with that position.

So what I'm trying to do now is before I bring another substantive witness into this court, to try and deal with the documents so I know, at least from the point of view of what, in my submission, the Crown is going to have to prove with that witness, I know what I have to do.

(Emphasis added)

[52] There are many similar comments in the transcripts. I do not think the application judge was wrong in taking the view that the trial judge was directing the prosecution to call its next witness rather than directing that it call a witness it had no intention to call. [page503]

[53] Finally, the broad statements by Justice L'Heureux-Dubé in Power and Cook must now be read in light of the recent decision of the Supreme Court in Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372, 217 D.L.R. (4th) 513. Iacobucci and Major JJ. speaking for the court, at para. 43, held that "'prosecutorial discretion' is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence." Iacobucci and Major JJ. expressly addressed, at para. 47, the contention that prosecutorial discretion insulates tactical and other conduct before the court from judicial supervision:

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.

(Underlining in original; italics added)

[54] In my view, the trial judge's power to manage the trial, including the power to review the order in which certain evidence may be called, properly falls within the area of the prosecutor's "tactics or conduct before the court" and thus does not implicate prosecutorial discretion that is reviewable only on the standard of abuse of process, bad faith or improper purpose. I do not think the appellant's separation of powers rationale stands in the way of recognizing a trial management power.

[55] The appellant also relies upon comments by Lamer J. in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609, at pp. 196-97 S.C.R., where in the discussion extending the tort of malicious prosecution to Crown Attorneys he noted that the tort was limited to deliberate and malicious use of the office of Crown Attorney rather than "merely second-guessing a Crown Attorney's judgement in the prosecution of a case". Again, those comments must be taken in context. The court was dealing in Nelles with the limits of a tort concerned with whether to initiate and continue a prosecution. The court was not talking about a trial management power. In any event, those comments must also be read in light of the reasons in Krieger. [page504]

(c) Counsel's brief

[56] The appellant's final rationale for not recognizing this trial management power lies in the familiar argument that the trial judge does not know counsel's brief. The trial judge has not interviewed the witnesses, read their statements and notes and reviewed all the available documents. This is a very important consideration and supports the view that a trial judge will be very cautious in making the kind of order that the trial judge made in this case. This rationale does not, however, support the broader proposition that a judge has no role in managing the trial even in directing the manner in which certain evidence should be called. In this case, the trial judge was not making his order in a vacuum. He had been with this case for close to 70 court days. He was not as familiar with the case as prosecution counsel but he had heard enough that he could make the kind of direction that he did. Unlike the trial judge in Sorger v. Bank of Nova Scotia, he did not attempt to take control of the trial from the outset. Having heard extensive argument on the point he made a decision that, in my view, was within his jurisdiction. I agree with the application judge's view [at paras. 229-30]:

The judge had to decide whether the chicken or the egg came first. He thought it best to hear witnesses before making an omnibus ruling on all the documents. Indeed he thought it the only practical way, after counsel had argued limitlessly and unproductively for months, to get the case back on the rails. His decision was informed by his direct and detailed knowledge of the evolution of the document arguments and all their twists and turns and all the shifts of position by the prosecution and the defence. His decision was informed by his daily experience in managing the trial and the issues and the counsel.

This is a matter within the jurisdiction and the judicial discretion of the trial judge, not an issue that attracts the extraordinary measure of intervention by this court in mid- trial. It is apparent that he made a rational exercise of discretion. It must always be remembered that this is not an appeal from alleged legal error. This is an application to remove the judge not on the grounds that he erred in law, but on the grounds that he lost jurisdiction by an error so patently unreasonable that he destroyed the underlying legality of the trial.

(d) The scope of a trial management power

[57] I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other [page505] form, and exceptionally to direct the order in which evidence is called. The latter power is one that must be exercised sparingly because the trial judge does not know counsel's brief. However, a judge would not commit jurisdictional error in exercising that power unless the effect of the ruling was to unfairly or irreparably damage the prosecution. That did not occur here. While some other judge might not have made the order that the trial judge did in this case and might very well have seen the merit of immediately proceeding with the omnibus document motion, I am not convinced that the trial judge's decision to do otherwise was a jurisdictional error. On my reading of the record, the ruling did not prevent the prosecutor from calling his case. I agree with the application judge's view (at para. 227) that deferring the documents motion did not "unfairly or irreparably" damage the position of the prosecution.

(e) The trial judge's misapprehension of the prosecution position

[58] I have previously indicated that one of the reasons given by the trial judge for deferring the omnibus document motion was that there would be considerable duplication. I have pointed out that the prosecution had undertaken not to relitigate the admissibility of documents that the trial judge ruled to be inadmissible. This was a significant concession by the prosecution and would have alleviated some of the concerns about duplication. However, duplication was not the only reason given by the trial judge and his error in failing to appreciate the impact of the prosecution's concession did not deprive him of jurisdiction to rule as he did.

(f) The trial judge's error respecting disclosure

[59] As part of his ruling on Day 67, the trial judge required the prosecution to prepare a list of documents it intended to present to Dr. Kavanagh. The trial judge purported to make this order under his power to order the Crown to make proper disclosure. The salient part of the ruling [at para. 167] is this:

Many of the documents which the defence intended to put in through the witness, Mr. Francisco have now been marked as exhibits following a similar process, except that the process in marking the Francisco documents was done in open court. The process should not be done in open court. The court should simply be provided with a list of the documents not in dispute. This is the process we will follow with Dr. Kavanagh.

By definition, I cannot order the Crown or defence to consent to a document being marked as an exhibit and I have no intention to do so, but I can require and do require the Crown to follow this process. I here refer to the Crown [page506] alone, as opposed to Crown and defence because defence has suggested and agreed to this process and, as indicated above, this is part of the Crown disclosure obligation.

(Emphasis added)

[60] The trial judge expanded on and clarified this ruling in subsequent days. What seems to have been envisaged is that counsel would exchange lists of documents that they intended to produce to Dr. Kavanagh. Counsel would then exchange lists of consents, indicating those documents on their opponent's list that were agreed to be admissible. After the exchange of consents, it would have been open to the party to withdraw their consent. If a party wished to add a further document to its list, it should give the other party some notice, although the "notice" could be very short, depending on the circumstances.

[61] I agree with the appellant that this order could not be supported as part of the prosecution's disclosure obligation. The prosecution had fulfilled that obligation by providing disclosure of all relevant material to the defence. That being said, the order made by the trial judge was a very mild intrusion, if any, into counsel's discretion in conducting the case. It was well within the trial judge's trial management power to make this order. The order was intended to expedite the trial and avoid the waste of court time. I agree with the application judge's treatment of this issue, at paras. 243 to 250 of his reasons, and need only address several points the appellant says were not dealt with by the application judge.

[62] The appellant submits that the trial judge's direction would perpetuate the unfairness to the prosecution because the defence would continue its practice of presenting documents to witnesses about which they had no knowledge and putting selective documents to witnesses out of a large class of related documents, and because it signalled that the trial judge intended to continue his practice of not making rulings on documents. I do not agree with this characterization of the impact of the trial judge's ruling. The trial judge made it clear that he could not force either party to consent to the admission of documents. It remained open to the prosecution, if so instructed, to refuse to consent, and even withdraw its consent, to admission of documents tendered by the defence. In that case, the defence would have to argue their admissibility in the usual way and subject to my comments below about its abuse of process theory.

[63] The appellant submits that the trial judge's order violates the prosecution's work product privilege. The application judge pointed out that work product privilege was never raised before the trial judge as a basis for not making the impugned direction [page507] and thus there was "a real question whether it can be considered on this application" [para. 245]. The appellant submits that it was never raised because "the whole issue of the Crown's s. 7 disclosure obligations was never raised. Justice Hryn raised it himself, for the first time, in his Ruling."

[64] Notwithstanding his doubts that work product privilege could be raised on the application, the application judge did go on to deal with the work product privilege and concluded that there was no violation. Thus, as he said, at para. 245"[l]itigation privilege is something more than the mere announcement of which previously disclosed documents you propose to lead through a particular witness." I agree with the application judge that there was no violation of the work product or litigation privilege. If the appellant had a real concern about privilege in respect to some aspect of the trial judge's ruling it would still be open to it to raise the matter in the proper context supported by proper material. But, a broad submission that being required to exchange lists of proposed documents in a complex commercial prosecution is a breach of litigation privilege would not suffice. As the application judge said, at para. 246"the orderly conduct of complex documentary trials may require some notice, whether or not one calls it disclosure, of the documents one intends to put into evidence through a particular witness."

[65] The appellant relies upon this court's decision in R. v. Foisy (2000), 2000 16959 (ON CA), 51 O.R. (3d) 161, 6 M.V.R. (4th) 205 (C.A.) as support for its position that the trial judge acted unfairly in imposing this disclosure obligation on the prosecution. Foisy was a much different case. In that case, there had been some delay in making disclosure. The judge before whom the accused appeared on an adjournment decided to take matters into his own hands and had the accused arraigned, so that he became the trial judge, and then on his own motion without notice to the Crown and without hearing submissions, stayed the proceedings because of a breach of the Charter of Rights and Freedoms. As Finlayson J.A. said, at para. 7, in proceeding in that way the trial judge "denied the Crown the basic principles of procedural fairness in Charter litigation". He also said that if the trial judge was "case managing, the trial judge was still obliged to proceed in accordance with the principles of natural justice". But, that is not what occurred here. The trial judge heard everything that counsel had to say. He did not act peremptorily or unfairly; he deprived neither side of natural justice. He had repeatedly attempted to reach some consensus about an effective way of dealing with the documents and before his ruling had raised the possibility of some out- of-court process to expedite matters. He then heard extensive submissions from [page508] Mr. Naster as to why he did not think the process would work. The appellant was afforded the basic principles of procedural fairness.

2. Duty to Rule on Evidence

[66] The appellant submits that the trial judge committed jurisdictional error in failing to rule on objections to the admissibility of evidence, particularly documentary evidence tendered by the respondent. This issue primarily revolves around Mr. Groia's novel argument that he could tender any document to a witness, whether or not the witness had ever seen the document or had anything to do with it, provided that the document had been disclosed to the defence but not tendered by the prosecution. He based his right to tender the documents in this fashion on the following theory. In failing to tender documents, which it conceded were relevant and authentic, as part of its examination in chief of the witness, the prosecution was implicated in an abuse of process.

[67] The dilemma posed by the defence submission is this. The defence stated that it was not yet in a position to prove an abuse of process that would entitle it to have the documents admitted in this fashion. On the other hand, by not ruling on the prosecution's objection the forensic value of various documents was uncertain. This defence tactic also had the unsettling effect of prosecution counsel being repeatedly berated with allegations of prosecutorial misconduct. When the issue arose, Mr. Groia would often make disparaging comments about the conduct of the prosecution but then take the position that he was not yet able to finally deal with the abuse of process allegation. In the end, the trial judge adopted two strategies. He told Mr. Groia to make a "standard objection" rather than repeat at length his abuse allegations and he tried to get some agreement from counsel that at least some documents could be entered on consent. This latter was a painful process because of the enmity that had developed between counsel and because of the radically different views counsel had about the rules of evidence.

[68] There was also tactical manoeuvring on both sides. For example, although counsel for the prosecution took the position that all of the documents it sought to tender were relevant and authentic he was stridently opposed to counsel for the defence using this admission as a platform to selectively enter various documents in the prosecution's binders. Thus, at one point when it looked like the defence might be able to have various documents entered if it admitted that the selected documents were relevant and authentic, prosecution counsel refused to accept the [page509] admission. For his part, defence counsel at one point sought the prosecution's consent to admission of a particular document, but when the prosecution gave its consent on the basis that it was a business document, defence counsel refused the concession; no doubt foreseeing that if he agreed to that basis for admission of the document, the prosecution would use the concession to lever the admission of other similar documents.

[69] The problem revolving around the allegations of abuse of process was not the only area in which the appellant alleges the trial judge's refusal to rule contributed to an unsatisfactory trial. On some occasions, documents were presented to the witness by defence counsel and marked as exhibits but it was never entirely clear whether the documents were admitted for their truth or for some other purpose, for example, merely to show that the witness had knowledge of the contents. This could have posed a difficulty later in the trial when the parties attempted to sort out what had been established in the case.

[70] However, the main problem was the failure to rule on the abuse of process issue and it is that with which I will deal. The difficulty with the weight to be attached to some of the documents will be sorted out in due time. The abuse of process issue is tied in with the civility complaint and the delay in ruling on the omnibus document motion. As to civility, much of the concern about Mr. Groia's conduct revolves around his constant allegations that every time the prosecution objected to his tendering a document to a witness the defence was being treated unfairly and this was further evidence of an attitude that the prosecution was interested only in a conviction, not a fair trial. As to the omnibus document motion, had that motion proceeded and had the prosecution succeeded in having all of its documents admitted, many of the documents also relied upon by the defence would have been part of the record.

[71] The application judge did not specifically deal with the appellant's complaint about the failure to rule. However, it is implicit in his ruling on the civility issue and the omnibus document motion that he did not consider this to be a jurisdictional error. I have previously set out some of this ruling above, from paras. 229 to 232 of his reasons.

[72] In my view, the trial judge did not make any jurisdictional error in failing to rule on the prosecution's objections. Postponement of the rulings did not lead to inadmissible evidence being admitted. In some cases, the document was simply marked for identification. In other cases, defence counsel backed down. The real consequence of the failure to rule was that it gave defence counsel an excuse to continue his submissions about perceived [page510] injustices perpetrated by the "government" or the "Commission" or by the prosecution. There being no jurisdictional error, the application judge was right not to interfere.

[73] That said, I think it appropriate to provide some assistance to the trial judge when the trial resumes. Defence counsel is wrong to assert that because the prosecution concedes a document is relevant and authentic he is entitled to tender it to any witness without regard to whether the witness knows anything about the document. A document may be relevant and authentic but counsel seeking to question a witness on the contents of the document must be able to demonstrate, if challenged, the admissibility of the witness's answer. Further, simply because a document is relevant and authentic does not mean it is admissible without regard to the rules of evidence, especially the hearsay rule. At various times, the trial judge made these points to counsel but defence counsel did not seem to appreciate them. In my view, in the unlikely event that defence counsel again makes this submission, unless he can clearly and succinctly point to a legal basis for admission of the document, he should not be entitled to pursue the matter any further.

[74] That brings me to the legal basis upon which the defence seemed to rely -- the alleged abuse of process. A stay of proceedings is not the only remedy for an abuse of process. That remedy is reserved for the clearest of cases and is granted in only rare circumstances. See Power, supra, and Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, 151 D.L.R. (4th) 119. But a trial judge would be entitled to grant some lesser remedy for an abuse of process that fell short of conduct necessitating a stay of proceedings. For example, in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, at para. 66, the court referred with approval to the remedy granted by the Quebec Court of Appeal in R. v. Xenos (1991), 1991 3455 (QC CA), 70 C.C.C. (3d) 362 (Que. C.A.) of ordering a new trial, in which the tainted evidence of a Crown witness would be excluded, rather than entering a stay of proceedings. Also see R. v. McMillan, 2003 52178 (ON CA), [2003] O.J. No. 3489 (QL), 176 O.A.C. 215 (C.A.). Similarly, I can see no theoretical or legal impediment to a trial judge permitting defence counsel to tender certain evidence that might be technically inadmissible, as a remedy under s. 24(1) of the Charter of Rights and Freedoms for an abuse of process or to ensure a fair trial. See R. v. Williams (1985), 1985 113 (ON CA), 50 O.R. (2d) 321, 18 C.C.C. (3d) 356 (C.A.), at pp. 342-43 O.R., p. 378 C.C.C. Further, it is obvious that whether or not that remedy was appropriate in a particular case might have to be determined very late in the case since it would only then be known whether that remedy was necessary. If the evidence had [page511] been admitted during the prosecution's case, there would be no need for such a remedy.

[75] However, the possibility that the court might grant a s. 24(1) remedy of the nature discussed in the previous paragraph does not mean that all of the other rules of evidence are held in abeyance in the meantime. The possibility that a document might be admitted as a remedy for an abuse of process at some later stage does not give the defence the right to confront witnesses with documents about which they know nothing and which have not yet become part of the record. The defence, like the prosecution, is bound by the rules of evidence. A consequence of the omnibus document motion not proceeding, which was clearly in line with defence counsel's strategy, was that documents he wanted to tender as part of his case that were included in the prosecution binders were not properly before the court and could only become so by application of the normal rules of evidence. He had to accept that as a consequence of his trial tactics.

[76] Thus, in the unlikely event that defence counsel again attempts to circumvent the rules of evidence through his abuse of process argument, the trial judge should require defence counsel to either elect to present his abuse of process motion then and there or say nothing more about the matter until he is prepared to fully argue the abuse of process. The solution adopted by the trial judge of permitting the defence to make its "usual objection", while having the effect of putting the prosecution on notice of what defence intended to eventually argue, was, in my view, unsatisfactory. It simply prolonged the proceedings and provided a further platform for Mr. Groia's excessive and often ill-considered remarks. When and if the defence does ultimately pursue its abuse of process motion it can at that time give notice in appropriate written form, including its allegations that the manner in which the prosecution presented its case in chief was abusive.

[77] However, to say that the trial judge's solution was unsatisfactory is not to say that it was an error in law, let alone a jurisdictional error. His solution was not irrational or unfair. He was also not wrong to try and encourage counsel to meet and attempt to reach a consensus about certain documents. He was not wrong to attempt to move the case along, pending the abuse of process and omnibus document motions, by attempting to have counsel provide lists of documents that they wish to tender to upcoming witnesses.

3. Civility

[78] In his reasons, the application judge has set out many examples of Mr. Groia's conduct in the trial. The application judge described this conduct in some of the following ways: [page512]

-- "unrestrained invective" (at para. 34).

-- "excessive rhetoric" (at para. 34).

-- "The tone of Mr. Groia's submissions . . . descended from legal argument to irony to sarcasm to petulant invective" (at para. 64).

-- "Mr. Groia's theatrical excess reached new heights on day 58" (at para. 89).

-- "Mr. Groia's conduct on this occasion more resembles guerilla theatre than advocacy in court" (at para. 91).

-- "unrestrained repetition of . . . sarcastic attacks" (at para. 271).

-- "Mr. Groia's defence consists largely of attacks on the prosecution, including attacks on the prosecutor's integrity" (at para. 272).

[79] As the application judge noted, the problem was not simply with Mr. Groia's conduct. His rhetoric was, in many cases, tied to a view about what constitutes improper prosecutorial conduct that was simply wrong. As the application judge pointed out (at para. 29), there is nothing wrong with a prosecutor seeking a conviction, yet "Mr. Groia constantly accused the prosecution of impropriety in doing the very thing it has the right to do". Mr. Groia accused the prosecution of unfairness for not introducing as part of its examination of Mr. Francisco, documents that it claimed favoured the defence and in objecting to the admissibility of such document in cross-examination. But, the prosecution is not duty bound to introduce all possible documents in examination of its witness and is not acting improperly in objecting to the admission of inadmissible evidence. It was wrong for Mr. Groia to accuse the prosecution of improperly attempting to secure a conviction because it was trying to apply the rules of evidence. As the application judge said (at para. 33)"it is inappropriate to attack a prosecutor for seeking a conviction. To do so, demonstrates a misunderstanding of the vital distinction between a prosecutor who improperly seeks nothing but a conviction and a prosecutor who properly seeks a conviction within the appropriate limits of fairness".

[80] Mr. Groia's rhetoric was improper. The application judge so found and I agree. But, did the trial judge's response deprive him of jurisdiction to proceed with the trial? I agree with the test proposed by the application judge, at para. 273 of his reasons:

Even if counsel's litigation style, as alleged by the prosecution, is abusive and sometimes personally nasty, the judge does not lose jurisdiction unless it [page513] prevents a fair trial. The trial judge, who takes the daily temperature of the trial in a case where both opposing counsel have a low threshold of moral outrage, has a wide discretion to decide whether the wounded feelings of one side prevent it from presenting its case adequately.

(Emphasis added)

[81] I also agree with the application judge's ultimate conclusion [at paras. 279, 284, 286] that the trial judge did not lose jurisdiction in this case:

The fact that a counsel may be abrasive does not deprive the court of jurisdiction. It may be that some judges would put an early lid on Mr. Groia's profusion of self righteous moral outrage and insist that he make his points without excessive rhetoric. A less patient judge or a more interventionist judge might have done more to curb the nasty edge in Mr. Groia's rhetoric, and also more to discourage Mr. Naster from challenging adverse rulings. But it is a matter of judgment in every case whether it is best to intervene, and risk further inflaming a counsel whose zeal exceeds his civility or his judgment, or simply to let the storm pass and then move ahead. It is not the function of the trial judge to intervene constantly and curb every rhetorical excess. Many judges take the view that it is more productive in the long run to give such counsel as much rope as they want, out of concern that constant judicial reaction will simply provoke more rhetoric and further delay. As noted above and below Mr. Justice Hryn has taken some steps to discourage Mr. Groia's rhetorical excess, just as he has taken some steps to discourage Mr. Naster from challenging adverse rulings [footnote omitted].

It is unfortunate that Mr. Groia took every opportunity to needle Mr. Naster with sarcastic allegations of professional misconduct. But prosecutors need thick skins and need not be easily baited. It is open to a judge, faced with cycles of provocation and reaction, to intervene strongly. It is also open to choose the path of complete non-intervention on the basis that judicial intrusion might simply excite further provocation. It is also open to take the middle ground adopted by Mr. Justice Hryn reflected in the above passages.

It cannot be said that Mr. Justice Hryn's patient refusal to descend into the arena or to depart from his established position of judicial neutrality above the fray represents an error of law, let alone a jurisdictional error.

[82] I agree with the conclusion of the very experienced application judge that the prosecution was not prevented from having a fair trial and, just as importantly, I accept his understanding of the role of a trial judge. I would just add these comments.

[83] It is important that everyone, including the courts, encourage civility both inside and outside the courtroom. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the civil context. Morden J.A. of this court expressed the matter this way in a 2001 address to the Call to the Bar: "Civility is not just a nice, desirable adornment to [page514] accompany the way lawyers conduct themselves, but, is a duty which is integral to the way lawyers do their work." Counsel are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. As Kara Anne Nagorney said in her article"A Noble Profession? A Discussion of Civility Among Lawyers" (1999) 12 Geo. J. Legal Ethics 815, at 816-17"Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society. . . . Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice." Unfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel. Such conduct diminishes the public's respect for the court and for the administration of criminal justice and thereby undermines the legitimacy of the results of the adjudication.

[84] Nothing said here is inconsistent with or would in any way impede counsel from the fierce and fearless pursuit of a client's interests in a criminal or quasi-criminal case. Zealous advocacy on behalf of a client, to advance the client's case and protect that client's rights, is a cornerstone of our adversary system. It is "a mark of professionalism for a lawyer to firmly protect and pursue the legitimate interests of his or her client" [See Note 2 at end of document]. As G. Arthur Martin said"The existence of a strong, vigorous and responsible Defence Bar is essential in a free Society" (Emphasis added) [See Note 3 at end of document]. Counsel have a responsibility to the administration of justice, and as officers of the court, they have a duty to act with integrity, a duty that requires civil conduct [See Note 4 at end of document].

[85] This was a complex case involving experienced counsel who took very different views about the role of the prosecutor and the rules of evidence. There is nothing in this record that shows that the trial judge was biased against the prosecution. The application judge has catalogued the attempts that the trial judge did make to keep the trial and defence counsel on track. The prosecution says he did not do enough but I think it difficult at this stage to second-guess a trial judge who was faced with what would be a very long and difficult case. [page515]

[86] I do, however, wish to deal with certain specific points made by the appellant and by the interveners. The appellant submits that the application judge erred in holding that counsel had the right to attack the integrity of the prosecutors at large outside the context of a specific motion, such as an abuse of process motion. In a related submission, the appellant submits that application judge erred in holding that the trial judge had no duty to intervene to stop the allegations of misconduct and that the defence had the right to continue to make allegations of impropriety against the prosecution until it had laid a sufficient foundation for its abuse of process motion. The application judge held, at para. 267, that:

Mr. Groia has a right to make allegations of abuse of process and prosecutorial misconduct. Mr Justice Hryn is obliged to listen to the allegations and to rule on them at the appropriate time after the appropriate evidentiary foundation has been laid. While it would be less provocative to Mr. Naster to have the abuse of process and prosecutorial misconduct motion determined at an early stage, the judge was within his jurisdiction, under the legal authorities, in postponing that ruling until a proper evidentiary foundation had been laid.

[87] Later, the application judge held that while defence counsel had the right to make submissions about alleged abuse of process and prosecutorial misconduct it was "unnecessary for him to couch those submissions in a repetitive stream of invective against Mr. Naster's professional integrity" (para. 271).

[88] I agree in part with the application judge. The defence has the right to make allegations of abuse of process and prosecutorial misconduct, but only where those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the proceedings. See R. v. Kutynec (1992), 1992 12755 (ON CA), 7 O.R. (3d) 277, 70 C.C.C. (3d) 289 (C.A.), at pp. 288-89 O.R. The trial judge was not obliged to repeatedly listen to those allegations outside of a specific Charter or abuse of process motion. Thus, I do not agree that the trial judge was obliged to listen to Mr. Groia's complaints every time he was moved to make one. I have already stated my view that it is not appropriate for the defence to use allegations of abuse of process to circumvent the normal rules of evidence and have suggested a procedure to deal with this specific issue should it arise again at the resumed trial. More generally, the trial judge should have instructed Mr. Groia to refrain from his comments concerning abuse of process or prosecutorial misconduct until the time came to make his abuse of process motion. Mr. Groia's obligation to advance his client's case did not give him the right to continue to make claims of professional [page516] misconduct and abuse of process that had no substance and before he was prepared to fully argue the issues.

[89] The appellant also submits that the application judge erred in holding that the defence conduct did not prevent the prosecutors from discharging their duties; that, in effect, the prosecutors should have simply toughened up and proceeded with the trial. The appellant also submits that the application judge misconstrued its submissions by interpreting it as a suggestion that the trial judge should have put Mr. Groia under "a gag order of some kind" (at para. 273).

[90] I have already referred to the application judge's findings in this respect. He held that the trial judge would not lose jurisdiction unless the conduct of defence counsel prevented a fair trial. The application judge was not satisfied that the conduct of defence counsel or the trial judge's alleged inaction did deprive the appellant of a fair trial. I have already indicated my agreement with that finding. Moreover, I agree with the application judge that this is not a case where a trial judge did nothing. The trial judge did intervene on several occasions to attempt to limit the nature of defence counsel's complaints. Like the application judge, I am not persuaded that the prosecutors were prevented from fulfilling their duties by the conduct of defence counsel. I agree with his conclusion, at para. 276, that "nothing in those allegations could reasonably prevent Mr. Naster from discharging his prosecutorial duties in a professional manner."

[91] I do, however, want to deal with one comment by the application judge. He said, at para. 275, the following:

To be the target of professional vilification may not be easy. But a hard fought trial is not a tea party. Prosecutors need thick skins. It is open to counsel, faced with an accusation that contains a nasty personal edge, to ignore it in the view that it demeans the accusing counsel more than it demeans the counsel accused.

(Footnote omitted)

[92] The test for abuse of process based upon alleged impropriety in Crown counsel's exercise of prosecutorial discretion has been set very high. A statement by L'Heureux-Dubé J. in Power, supra, at p. 616 S.C.R., illustrates the problem:

Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.

[93] Since the defence can only secure a stay of proceedings by proof of, for example"improper motives or bad faith" this has led to an unfortunate escalation of the rhetoric where the defence [page517] alleges an abuse of process. It is a very serious matter to make allegations of improper motives or bad faith against any counsel. Such allegations must only be made where there is some foundation for them and they are not to be made simply as part of the normal discourse in submissions over the admissibility of evidence or the conduct of the trial. To persist in making these submissions does not simply hurt the feelings of a thin-skinned opponent. Those types of submissions are disruptive to the orderly running of the trial. They sidetrack the prosecutor and the trial judge from the real issues at the trial. No prosecutor, no matter how thick- skinned, is obliged to hear the kind of allegations made by Mr. Groia in this case, until there was some prospect that these allegations would be proved and lead to a remedy. The trial judge should have instructed Mr. Groia to stop and to reserve his concerns about the conduct of the prosecution until the time came to make the abuse of process motion. Even when that time came, defence counsel is obliged to make submissions without the rhetorical excess and invective that Mr. Groia sometimes employed.

[94] In Marchand, supra, at para. 148, this court has commented upon the problems caused by incivility in the courtroom. In that case, the court noted that civility in the courtroom is not only the responsibility of counsel but also "very much the responsibility of the trial judge". The failure of counsel and the trial judge in that case to discharge their responsibilities "tarnished the reputation of the administration of justice". Crown counsel have special responsibilities as "ministers of justice". But, as officers of the court and as barristers and solicitors, defence counsel also have responsibilities to the court and to other counsel and they have a duty to uphold the standards of the profession. As I have said, defence counsel's obligation to his or her client to fearlessly raise every legitimate issue is not incompatible with these duties to the court, to fellow counsel and to the profession. See Arthur Maloney, Q.C."The Role of the Independent Bar", 1979 Law Society of Upper Canada Special Lectures 49 at p. 63, and G. Arthur Martin, Q.C."The Role and Responsibility of the Defence Advocate" (1970) 12 C.LQ. 376 at p. 385.

[95] Mr. Maloney and Mr. Martin both referred to the well- known passage from Rondel v. Worsley, [1967] 3 All E.R. 993, [1969] 1 A. C. 191 (H.L.), at pp. 227-28 A.C. where Lord Reid said, in part that"[c]ounsel must not mislead the court, [and] he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession". As the application judge noted, in this case the core problem was that Mr. Groia did not seem to understand the role of the prosecutor. This led him to make his improper allegations [page518] against the prosecutor when the prosecutor simply objected to a question or an attempt to introduce a document. I assume Mr. Groia believed in the merit of these submissions and was not deliberately misleading the court and casting aspersions on counsel and the "government" for which there was no foundation; nevertheless, he was bound by the standards of the profession to keep his rhetoric within reasonable bounds. If he was unable to do so, the trial judge had the responsibility referred to in Marchand.

[96] This has nothing to do with trials not being "tea parties". Every counsel and litigant has the right to expect that counsel will conduct themselves in accordance with The Law Society of Upper Canada, Rules of Professional Conduct. Those rules are crystal clear. Counsel are to treat witnesses, counsel and the court with fairness, courtesy and respect. See Rules 4 and 6 and Commentaries. I have set out what seems to have been the genesis for the acrimony between counsel in this case. Even if Mr. Groia honestly believed that the prosecution tactics were excessive and could amount to an abuse of process, this did not give him licence for the kind of submissions he made in this case. As the application judge said [at para. 267]"[a]buse of process and prosecutorial misconduct . . . form part of the arsenal of defence tactics." But, motions based on abuse of process and prosecutorial misconduct can and should be conducted without the kind of rhetoric engaged in by defence counsel in this case.

[97] I do not wish to leave the impression that the trial judge did nothing to curb defence counsel's excesses. He did make some attempts and, it seems to me, tried to be fair and even-handed in dealing with both counsel. He also made it clear that he had not accepted Mr. Groia's characterization of the prosecution's conduct. And, to repeat, I agree with the application judge that there was no jurisdictional error.

THE INTERVENORS

[98] The Ontario Crown Attorneys Association and the Criminal Lawyers Association intervened in this appeal to make submissions on the appropriate notice to be given to Crown counsel of an allegation of misconduct. The OCAA also intervened on the civility issue. Many of the submissions made by the Associations are similar to their submissions when they intervened in the Crown appeal in R. v. Leduc. This court's reasons in Leduc have now been released and can be found at (2003), 2003 52161 (ON CA), 176 C.C.C. (3d) 321, 108 C.R.R. (2d) 337 (C.A.). Laskin J.A. deals with the notice issues, at paras. 82 to 96. I agree with those reasons and see no need for any further elaboration. [page519]

[99] The Attorney General for Ontario also intervened on the civility issue. While I have not directly addressed the submissions made by Mr. Rupic, counsel for the Attorney General, I have found those submissions, like those of other counsel, helpful in addressing the civility issue. In particular, I agree with Mr. Rupic's submission that a judge could lose jurisdiction in circumstances falling short of actual or reasonable apprehension of bias on the part of the trial judge where the failure of the trial judge to intervene would prevent a fair trial. Mr. Rupic suggested several bases upon which such a finding could be made, as where counsel has been rendered ineffective and thus prevented from effectively presenting the case. As I have indicated, I agree with the application judge that did not occur in this case.

COSTS

[100] The respondent appeals against the decision of the application judge refusing to give the respondent the costs of the application. The respondent also seeks costs in this court. The respondent suggests that this court should adopt the rule in civil cases that costs ordinarily follow the event. We did not call on the appellant to respond to these submissions. The question of costs on an application under the Provincial Offences Act, R.S.O. 1990, c. P.33, is governed not by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but by s. 142(5) of the Act. Under s. 142(5), the court has authority to award costs that it considers just and reasonable. The rule in proceedings under the Act is that generally no costs are awarded either against the Crown or the defendant. There were compelling reasons why a costs order against the prosecution would not be just and reasonable in this case. This application and appeal were brought because of the respondent's counsel's inappropriate behaviour during the trial. The respondent has never appeared at the trial but I can only assume that these tactics have been carried out with his approval. The application judge gave full and careful reasons, which can be found at, 2003 41569 (ON SC), [2003] O.J. No. 393 (QL) (S.C.J.). I agree entirely with those reasons and in particular the following comments, at paras. 18 and 21:

It was unnecessary on the application to pass judgment on his litigation style because it did not affect the jurisdiction of the trial judge. . . . On this costs motion, however, the nature and impact of his conduct must be considered to the extent that it triggered the application. Mr. Groia's conduct on significant occasions during the trial, including some of the conduct noted in paragraphs 31-34, 89-92, 190-91, and 268-273 was appallingly unrestrained and on occasion unprofessional. In light of this conduct the prosecutor's application, although unsuccessful, was reasonable. [page520]

Even with the problems in the conduct of the prosecution it seems unlikely this application would have been brought but for Mr. Groia's inappropriate conduct. The application, although novel and unsuccessful, was reasonable in light of the nature and quality of that conduct. It was necessary to review the record extensively before it became clear that his extreme conduct did not deprive the court of jurisdiction. To award costs to the defence in this case would be unfair to the prosecution and contrary to the public interest in the administration of justice. The behaviour indulged in by Mr. Groia should be discouraged, not encouraged by an award of costs. To award costs to the defence would carry the wrong message by rewarding him for the consequences of his unacceptable conduct.

(Emphasis added; footnotes omitted)

Disposition

[101] Accordingly, I would dismiss the appeal by the appellant without costs and dismiss the appeal by the respondent from the costs order.

Appeals dismissed.

Notes

Note 1: The defence objections primarily concerned the relevancy of many of those documents.

Note 2: Nagorney, supra, at p. 817.

Note 3: "The Practice of Criminal Law as a Career" reprinted in 2002 Law Society of Upper Canada Gazette, at p. 93.

Note 4: See Ontario, Defining Professionalism (Chief Justice of Ontario Advisory Committee on Professionalism, 2001).