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

73 O.R. (3d) 758

[2004] O.J. No. 5017

Docket: C39987

Court of Appeal for Ontario,

Rosenberg, Goudge and Borins JJ.A.

December 9, 2004

Charter of Rights and Freedoms -- Fundamental justice -- Disclosure -- Defendant charged with provincial offences bringing application for disclosure -- Crown arguing some documents subject to privilege and that documents were in possession of third party -- Trial judge dismissing disclosure application as relevance not shown -- Trial judge also finding even if documents relevant, O'Connor application required as documents in hands of third party -- Defendant seeking prohibition during trial -- Motions judge erring by granting stay of proceedings on basis of s. 7 breach due to non- disclosure -- Breach of accused's Charter rights not shown -- Not amounting to jurisdictional error justifying discretionary intervention by superior court mid-trial even if trial judge wrong in disclosure ruling -- Exceptional circumstances required before superior court justified in exercising narrow jurisdiction to issue prohibition or certiorari during trial as result of denial of constitutional righ ts -- Stay of proceedings disproportionate to alleged breach of rights -- Crown appeal from stay of proceedings allowed -- New trial ordered -- Canadian Charter of Rights and Freedoms, s.7.

Charter of Rights and Freedoms -- Remedies -- Stay of proceedings -- Defendant charged with provincial offences bringing application for disclosure -- Crown arguing some documents subject to privilege and documents were in possession of third party -- Trial judge dismissing disclosure application as relevance not shown and if relevant, O'Connor application required as documents in hands of third party -- Defendant seeking prohibition during trial -- Motions judge erring by granting stay of proceedings on basis of s. 7 breach due to non-disclosure -- Not shown that accused's Charter rights infringed -- Exceptional circumstances required before superior court justified in exercising narrow jurisdiction to issue prohibition or certiorari during trial as result of denial of constitutional rights -- Stay of proceedings disproportionate to alleged breach of rights -- Crown appeal from stay of proceedings allowed and new trial ordered. -- Canadian Charter of Rights and Freedoms, s.7.

[page759]

The defendant, the former Superintendent of a water pollution control plant, was charged with offences under the Ontario Water Resources Act, R.S.O. 1990, c. O.40. On what was to be the first day of the trial, Crown counsel advised the court that he had just been made aware of additional disclosure, that there were a variety of issues concerning the new documents and that some of the material was privileged. The material in question consisted of a binder of documents that the defendant's superior at the plant had kept, consisting of records of meetings, correspondence and documents relating to the defendant. Copies of the non-privileged documents were ultimately turned over to the defence. The trial was adjourned. The defendant brought an application at trial for an order for production of the balance of the documents. The justice of the peace dismissed the application, holding that the defence had not shown that the documents were relevant and, in any event, since they were in the hands of a thir d party, the Crown could not be ordered to disclose them and the defence would have to bring an O'Connor application. On an application by the defendant for prohibition, the application judge found that the trial court had made a palpable error that caused it to lose jurisdiction by failing to order disclosure; that the Crown failed to make complete and timely disclosure; and that this caused a serious breach of the defendant's Canadian Charter of Rights and Freedoms rights and prevented him from having a fair trial. The application judge granted a stay of proceedings. The Crown appealed.

Held, the appeal should be allowed.

The justice of the peace committed no jurisdictional error that warranted the extraordinary intervention by the application judge in an ongoing trial. The circumstances in which a superior court may intervene in the course of a trial in a lower court are narrowly circumscribed by statute and by the common law. Section 141(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33 provides that no application shall be made to quash a conviction, order or ruling from which an appeal is provided under that Act. Section 141(4) provides that on an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred. At common law, certiorari and prohibition are discretionary remedies and the superior court should generally decline to grant the remedy where there is an adequate appellate remedy. Not every erroneous ruling on an alleged Charter violation ca uses the trial court to lose jurisdiction. Only in special and exceptional cases can it be said that the denial of a constitutional right has resulted in a loss of jurisdiction so as to justify the extraordinary remedies of certiorari and prohibition. In this case, the trial judge's ruling could not be characterized as palpably wrong; in fact, it was probably correct. Even if the trial judge was wrong in failing to order disclosure, the defendant had at least two other options: he could have brought an O'Connor application; or he could have waited to the end of the trial and, if convicted, appealed to the Provincial Offences Appeal Court. Further, even if there was a violation of the defendant's rights, the remedy granted was disproportionate to the violation. The usual remedy for a breach of the duty to disclose is an order for disclosure. There was no reason to think that such an order would have been inadequate in this case. The stay is set aside and the case remitted back to the Provin cial Offences Court for a new trial.

APPEAL from stay of proceedings by Quigley J. of the Superior Court of Justice, dated April 14, 2003.

Cases referred to R. v. Corbeil (1986), 1986 4650 (ON CA), 27 C.C.C. (3d) 245, [1986] O.J. No. 175 (C.A.); R. v. Duvivier (1991), 1991 7174 (ON CA), 3 O.R. (3d) 49, [1991] O.J. No. 481, 44 O.A.C. 249, 6 C.R.R. (2d) 180, 64 C.C.C. (3d) 20, 4 C.R. (4th) 378 (C.A.) (sub nom. R. v. Johnson); R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, 235 D.L.R. (4th) 131, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20, [2003] O.J. No. 4819 (C.A.), affg [2002] O.J. No. 4103, [2002] O.T.C. 829 (S.C.J.); [page760] R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 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)); Stevens v. Canada (Prime Minister), 1998 9075 (FCA), [1998] F.C.J. No. 794, [1998] 4 F.C. 89, 147 F.T.R. 308n, 161 D.L.R. (4th) 85, 228 N.R. 142, 80 C.P.R. (3d) 390, 21 C.P.C. (4th) 327 (C.A.) (sub nom. Stevens v. Canada (Privy Council)) Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Ontario Water Resources Act, R.S.O. 1990, c. O.40 Provincial Offences Act, R.S.O. 1990, c. P.33, s. 141(3), (4) [as am.]

Jerry Herlihy, for appellant. Michael J. O'Shaughnessy and Scott D. Laushway, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The Crown appeals from the Order of Quigley J. made on April 14, 2003 granting a stay of proceedings in the Ontario Court of Justice on 33 counts laid against the respondent for offences contrary to the Ontario Water Resources Act, R.S.O. 1990, c. O.40. The charges related to a period from 1998 to 2000 and alleged that among other things the respondent, the former Superintendent of the Brockville Water Pollution Control Plant, submitted false information to the Ministry of the Environment concerning the operation of the plant.

[2] The respondent's trial commenced on September 23, 2002 and continued until October 1, 2002 when the respondent brought his application for prohibition with certiorari in aid. The application judge ordered the stay of proceedings because, in his view, the failure of the Crown to provide disclosure resulted in a serious violation of the respondent's right to a fair trial. He held that this violation, together with the length of time that the charges had been outstanding, meant that the only appropriate remedy was a stay of the proceedings.

[3] In my view, the application judge erred in law. The justice of the peace presiding at the respondent's trial committed no jurisdictional error that would warrant the extraordinary intervention by the superior court in an ongoing trial. Further, even if there was a violation of the respondent's rights, the remedy granted was disproportionate to the violation. Accordingly, I would allow the appeal. [page761]

The Procedural History

[4] As I have indicated, the charges against the respondent arose out of his employment as the Superintendent of the Brockville Water Pollution Control Plant. It appears that the allegations came to light because of an investigation by the City of Brockville. The results of that investigation were given to the Ministry of the Environment. On December 5, 2000, the City pleaded guilty to two charges under the Ontario Water Resources Act relating to the operation of the plant and discharge from the plant into the St. Lawrence River.

[5] The respondent was charged on February 2, 2001 with seven counts under the Act. Thereafter, he made numerous appearances in Provincial Offences Court. At various appearances the defence raised some concerns about the adequacy of disclosure. The defence also sought particulars of the charges. On August 15, 2001, the court ordered that the Crown provide some particulars. These particulars were provided on September 26, 2001 and the case was adjourned. On December 20, 2001, the court amended the information to reflect the particulars by adding 26 further counts. In the meantime, the trial had been scheduled for two weeks beginning on February 4, 2002. On what was to be the first day of trial, Crown counsel advised the court that he had just been made aware of additional disclosure. He also stated that there were a variety of issues concerning the new documents and that some of the material was privileged.

[6] The additional disclosure came to be referred to as the Montgomery Binder. It was a binder of documents that William Montgomery, the respondent's supervisor, had kept consisting of records of meetings, correspondence and documents relating to the respondent. There seems little doubt that neither Crown counsel nor the Ministry investigator, Mr. Rickey, knew of the documents until Mr. Montgomery told Mr. Rickey about the binder on the eve of trial. Mr. Montgomery had reviewed the documents in the binder in preparation for testifying at trial. He was then no longer employed by the City and had left the binder at the City offices. Mr. Rickey began to look at the binder but when he saw that it contained solicitor-client documents, he stopped and notified counsel for the City. Mr. Montgomery then numbered the documents, which were placed in a sealed box and turned over to Mr. Rickey.

[7] A short time later, counsel for the City reviewed the documents and retained those documents over which the City was asserting privilege and provided the remaining documents to Mr. Rickey. [page762] Copies of the non-privileged documents were then turned over to the defence.

[8] On May 27, 2002, the parties were back in court to argue some other matters. At that time, there was brief mention that the City was claiming that some of the documents were privileged. The case was adjourned to September 23, 2002 for trial. At the opening of trial, the defence applied to have the court order the Crown to produce the balance of the Montgomery Binder documents. The application was refused. The justice of the peace held that the defence had not shown the documents were relevant and, in any event, since they were in the hands of a third party, the Crown could not be ordered to disclose them. The defence raised the issue of disclosure again before Mr. Montgomery began to testify and again in the course of his testimony. The justice of the peace repeated her ruling that these were third-party records and to obtain their production the defence would have to bring an application in accordance with the procedure laid down in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98.

[9] On October 1, 2002, the respondent served his application for prohibition. The application was returnable on November 4, 2002. At the request of the respondent it was adjourned to March 27, 2003.

The Reasons of the Application Judge

[10] The application judge made certain findings that may be summarized as follows:

-- During the first week of trial, the defence discovered that the Crown had failed to provide approximately two-thirds of the Montgomery documents.

-- The trial court made a palpable error that caused it to lose jurisdiction by failing to order disclosure.

-- The Crown failed to make complete and timely disclosure causing a serious breach of the respondent's Canadian Charter of Rights and Freedoms rights. The failure to provide disclosure "was highly prejudicial to the [respondent] in preparing his defence to these charges and prevented him from having a fair trial".

-- The reason given by the Crown for refusing to provide disclosure was freedom of information issues and this position was unreasonable because Mr. Rickey and Mr. Montgomery had "reviewed" the entire binder. [page763]

-- The trial court should have ordered that the entire Montgomery binder be disclosed to the defence.

-- There was no obligation on the defence to subpoena the Montgomery documents.

[11] The application judge concluded that "as the Crown's failure to provide such disclosure resulted in a serious violation of the applicant's right to a fair trial and in view of the length of time that the charges have been outstanding, the only reasonable remedy available to this court at this time, I find, is to order a stay of all charges".

Analysis

[12] The circumstances in which a superior court may intervene in the course of a trial in a lower court are narrowly circumscribed by statute and by the common law. Section 141(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, provides that "[n]o application shall be made to quash a conviction, order or ruling from which an appeal is provided [under the] Act". Section 141(4) provides that on an application for relief in the nature of certiorari, the Superior Court of Justice "shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred".

[13] At common law, certiorari and prohibition are discretionary remedies and the superior court should generally decline to grant the remedy where there is an adequate appellate remedy. As Doherty J.A. said in R. v. Duvivier (1991), 1991 7174 (ON CA), 3 O.R. (3d) 49, [1991] O.J. No. 481, 64 C.C.C. (3d) 20 (C.A.), at pp. 53-54 O.R., pp. 23-24 C.C.C.:

The jurisdiction to grant that relief, either by way of prerogative writ or under s. 24(1) of the Charter, is discretionary. It is now firmly established that a court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. In such cases, it is incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by the superior court.

After referring to a number of cases supporting this proposition, Doherty J.A. continued as follows:

These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.

Those same cases identify the policy concerns which underline the predilection against resort to the superior court for relief during criminal proceedings. Such applications can result in delay, the fragmentation of the criminal [page764] process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process.

(Emphasis added)

[14] Those policy concerns apply not only to criminal cases but also to proceedings under the Provincial Offences Act. See R. v. Felderhof, [2002] O.J. No. 4103, [2002] O.T.C. 829 (S.C.J.), at paras. 11-16, affd (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819, 180 C.C.C. (3d) 498 (C.A.). Thus, for example, at the time the respondent brought his application for prohibition there was an incomplete record. Mr. Rickey had not testified and so the complete picture of what occurred with the Montgomery Binder was not before the application judge. The result of the application was to delay and fragment the trial. As A. Campbell J. said in R. v. Felderhof at para. 14:

The appellate search for hypothetical error in the middle of a trial defeats not only the integrity of the trial process but also the efficacy of the appeal process. The only efficient way to deal with alleged errors, and the fairest way to both sides, is to wait until the trial is over and then to appeal. From a practical point of view, trials would be endless if mid-trial rulings could be appealed or reviewed.

[15] The limitation on intervention in ongoing proceedings applies even where the accused or defendant claims that a ruling by the trial court has breached constitutional rights. Duvivier and Felderhof make clear that not every erroneous ruling on an alleged Charter violation causes the trial court to lose jurisdiction. As was said by this court in R. v. Corbeil (1986), 1986 4650 (ON CA), 27 C.C.C. (3d) 245, [1986] O.J. No. 175 (C.A.), at p. 254 C.C.C. "only in special and exceptional circumstances can it be said that the denial of a constitutional right has resulted in a loss of jurisdiction so as to justify the extraordinary remedies of certiorari and prohibition". The court described those circumstances as involving "a palpable infringement of a constitutional right that has taken place or is clearly threatened".

[16] This was not a proper case for intervention by the superior court. Even if the justice of the peace was wrong in failing to order disclosure, the respondent had at least two other options. First, he could have done as suggested by the trial court and proceeded in accordance with O'Connor. Using the O'Connor procedure, the respondent would bring a formal written application supported by an affidavit setting out the specific grounds for production. He would also be required to give notice to third parties [page765] in possession of the documents, as well as to those persons who have privacy interests in the records. Thus, the respondent would have to give notice to the City, which had custody of the documents and was claiming that they were privileged. The respondent would also have to ensure that the custodian (here, the City) and the records were subpoenaed.

[17] Second, the respondent could have waited to the end of the trial and, if convicted, appealed to the Provincial Offences Appeal Court. At that time there would have been a complete record before the reviewing court concerning the documents in question and there would be a clearer picture as to whether the documents were necessary for the respondent to make full answer and defence.

[18] Further, the order made by the justice of the peace cannot be described as a palpable infringement of a constitutional right. First, the respondent had known since February 2002 that the City was claiming privilege over some of the documents and that these documents were not being disclosed. Thus, since February 2002, the respondent has had time to take steps to obtain production of those documents. Instead, he did nothing and maintained his position that the prosecution was required to disclose documents that it did not have in its possession.

[19] Second, the ruling by the justice of the peace with respect to the Montgomery Binder cannot be properly characterized as palpably wrong. In fact, on this limited record, in my view her ruling was probably correct. While Mr. Rickey saw the documents prior to sealing them, the record does not support the application judge's finding that Mr. Rickey had reviewed all of them. Mr. Rickey never had possession of the documents over which the City claimed privilege. On this record, it cannot be said that because Mr. Montgomery had reviewed the documents, any privilege had been waived. Mr. Montgomery had been a senior official in the City and it is at least arguable that he was within the scope of the City's privilege: see Stevens v. Canada (Prime Minister), 1998 9075 (FCA), [1998] F.C.J. No. 794, [1998] 4 F.C. 89 (C.A.). Since the documents were not in the possession of the Crown, some procedure similar to the O'Connor procedure would have been the proper way for the defence to have sought their production.

[20] The Crown could not disclose what it did not have. The documents were not in the Crown's possession. Mr. Rickey acted reasonably and responsibly to ensure continuity of the documents while at the same time respecting the City's assertion of privilege. The City's own investigation may have led to the charges being laid against the respondent and it appears that the City was co-operating with the Ministry. But, that did not make the City an [page766] arm of the Crown, so that any document in the possession of the City became subject to the Crown's disclosure obligations.

[21] The respondent submits that the justice of the peace was clearly in error in her approach to disclosure generally. He submits that the justice of the peace took the position that she would only order disclosure of material that the Crown intended to rely upon. As I have said, it is not apparent to me that the justice of the peace was wrong with respect to the Montgomery Binder and it was that ruling that precipitated the application to the superior court and led to the stay of proceedings. In any event, even if some of the reasons of the justice of the peace were erroneous in respect of certain of her rulings, on this record, it was not shown that her rulings resulted in a palpable infringement of a constitutional right.

[22] Even if the respondent had established an infringement of his right to disclosure, the application judge should not have entered a stay of proceedings. A stay of proceedings is a drastic remedy and is reserved for those cases where it is "not possible to remedy through reasonable means the prejudice to the accused's right to make full answer and defence . . . [It] is a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted" (R. v. O'Connor at para. 77).

[23] The usual remedy where a court finds a breach of the duty to disclose is to order the disclosure. There was no reason to think this remedy would have been inadequate, always assuming that the privilege issue was resolved in favour of the respondent. Further, without any inquiry into the materiality of the non-disclosed information, it was difficult for the application judge to conclude that the non-disclosure had prejudiced the respondent's ability to make full answer and defence to such an extent that only a stay of proceedings was appropriate.

[24] Finally, the application judge was in error in staying the proceedings because of delay. He gave no consideration to the factors a court must take into account before staying proceedings for delay. He did not consider whether the respondent was responsible for any of the delay and, most importantly, he failed to take into account the important public interest that these serious allegations be tried on their merits.

Disposition

[25] Accordingly, I would allow the appeal, set aside the stay of proceedings and dismiss the application for prohibition. Ordinarily, the appropriate remedy would be to remit the matter [page767] to the justice of the peace for her to continue the trial. However, we were advised that she has since retired. Accordingly, the case is remitted back to the Provincial Offences Court for a new trial.

Appeal dismissed.