Her Majesty the Queen v. 1353837 Ontario Inc. [Indexed as: R. v. 1353837 Ontario Inc.]

74 O.R. (3d) 401

[2005] O.J. No. 656

Docket: C42378

Court of Appeal for Ontario,

Doherty, Laskin and Juriansz JJ.A.

February 24, 2005

Criminal law -- Disclosure -- Defendants charged with violating Building Code Act -- Defendants bringing motion for further disclosure -- City resisting motion and filing affidavit of Chief Building Inspector claiming disclosure requests irrelevant or had been satisfied -- Defendants seeking to cross-examine inspector on his affidavit before arguing disclosure motion -- Justice of peace refusing to permit cross- examination and instead ruling on each disclosure request -- Defendants successfully seeking certiorari to quash ruling regarding cross-examination -- City appealing certiorari -- Justice of peace having right to control disclosure process to avoid fishing expedition -- Defendants failing to show that cross-examination was necessary -- Refusal to permit cross- examination not constituting breach of natural justice and therefore not amounting to jurisdictional error -- City's appeal from certiorari application granted.

Criminal law -- Provincial Offences Act -- Costs -- Defendants bringing disclosure application before justice of peace -- City filing affidavit in response asserting that disclosure requests either already met or irrelevant -- Defendant seeking to cross-examine on affidavit -- Justice of peace refusing to permit cross-examination and ruling on application -- Defendants successfully bringing application for certiorari on basis that right to natural justice breached by denial of cross-examination -- Superior Court judge issuing certiorari ordering that costs of application be reserved to trial judge -- Generally no costs awarded against either side in such proceedings -- Order for costs set aside.

The defendants were charged under the Provincial Offences Act, R.S.O. 1990, c. P.33 with violating the Building Code Act, 1992, S.O. 1992, c. 23. They were dissatisfied with the disclosure provided by the City and brought a motion for further disclosure, listing a number of specific requests for additional material. The City resisted the motion and filed the affidavit of its Chief Building Inspector, who claimed that the disclosure requests were either irrelevant or had been satisfied. Before arguing its motion, the defence sought to cross-examine the inspector on his affidavit. The presiding justice of the peace refused to permit the cross-examination and instead ruled on each disclosure request. The defendants applied for certiorari to quash the justice of the peace's ruling. The application judge granted the application, holding that the refusal to allow cross-examination was a breach of natural justice and, therefore, an error going to jurisdiction. The City appealed.

Held, the appeal should be allowed.

Section 141(3) of the Provincial Offences Act did not preclude an application to quash the order of the justice of the peace refusing to permit cross-examination. Section 140(1) of the Provincial Offences Act authorizes an application for certiorari for a pre-trial ruling. Section 141(3) precludes certiorari applications for orders for which an appeal lies. Section 116(1) provides for appeals from convictions or dismissals, and not from a pre-trial order such as the one made by the justice of the peace. Thus, ss. 141(3) and 116(1) of the POA did not preclude the defendants' certiorari application. [page402]

A denial of natural justice or procedural fairness amounts to jurisdictional error. In this case, the justice of the peace's refusal to permit cross-examination of the inspector on his affidavit did not deny the defendants procedural fairness. A justice of the peace, like a trial judge, has the right to control the disclosure process. That right includes refusing unnecessary cross-examination. Before agreeing to permit cross- examination, the justice of the peace was entitled to inquire why cross-examination was necessary. Defence counsel failed to show that it was necessary. If the justice of the peace erred, she erred within her jurisdiction.

The application judge who granted certiorari also ordered the costs on the application be reserved to the trial judge. The general rule in provincial offences matters in that no costs are ordered against either party. There will be no costs for the application or for this appeal.

APPEAL from the order of Templeton J. of the Superior Court of Justice dated August 17, 2004, quashing the ruling of Justice of the Peace Susan Stewart of the Ontario Court of Justice dated March 22, 2004 refusing to permit cross- examination on a motion for disclosure.

Cases referred to Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, 122 D.L.R. (4th) 129, 177 N.R. 325, 85 F.T.R. 79n; Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14, 26 N.R. 364, [1979] 3 W.W.R. 676; Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483, [1994] O.J. No. 1803, 118 D.L.R. (4th) 129 (C.A.) [Leave to appeal to S.C.C. refused (1995), 21 O.R. (3d) xvi, 186 N.R. 78n]; Ontario Securities Commission v. Caratel Ltd. (1993), 1993 8597 (ON CA), 12 O.R. (3d) 319, [1993] O.J. No. 641, 100 D.L.R. (4th) 767 (C.A.), affg (1992), 1992 7400 (ON SC), 10 O.R. (3d) 491, [1992] O.J. No. 1910, 96 D.L.R. (4th) 501 (Gen. Div.) (sub nom. R. v. Caratel Ltd.); R. v. 1353837 Ontario Inc., [2005] O.J. No. 166, [2005] O.T.C. 34 (S.C.J.); R. v. Arcand, 2004 46648 (ON CA), [2004] O.J. No. 5017, 193 O.A.C. 16, 192 C.C.C. (3d) 57, 10 C.E.L.R.(3d) 161 (C.A.); R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, [1994] S.C.J. No. 89, 27 Alta. L.R. (3d) 1, 178 N.R. 118, 26 C.R.R. (2d) 189, 96 C.C.C. (3d) 225, 36 C.R. (4th) 201; R. v. DDM Plastics Inc. (1997), 1997 14541 (ON CA), 32 O.R. (3d) 652, [1997] O.J. No. 248 (C.A.), affg (1994), 1994 7309 (ON SC), 20 O.R. (3d) 362, [1994] O.J. No. 1806, 23 C.R.R. (2d) 348 (Gen. Div.); 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, [2003] O.J. No. 4819, 235 D.L.R. (4th) 131, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20 (C.A.); R. v. Forsythe, 1980 15 (SCC), [1980] 2 S.C.R. 268, 112 D.L.R. (3d) 385, 32 N.R. 520, 53 C.C.C. (2d) 225, 15 C.R. (3d) 280; R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 83 Alta. L.R. (2d) 193, 130 N.R. 277, [1992] 1 W.W.R. 97, 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277 Statutes referred to Building Code Act, 1992, S.O. 1992, c. 23 Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 116(1), 140(1) [as am.], 141(3), (4) [as am.], Part III

John M. Skinner, Q.C., for appellant. Paul H. Starkman, for respondents. [page403]

The judgment of the court was delivered by

LASKIN J.A.: --

A. Introduction

[1] The main issue on this appeal is whether a justice of the peace committed a jurisdictional error by refusing to allow the defence to cross-examine a prosecution witness on a motion for further disclosure.

[2] The City of Stratford charged the respondents under the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "POA") with violating Ontario's Building Code Act, 1992, S.O. 1992, c. 23. A dispute arose over whether the City had given full disclosure to the defence. The respondents brought a motion for further disclosure, listing a number of specific requests for additional material. The City resisted the motion and filed the affidavit of its Chief Building Inspector, who claimed that the disclosure requests were either irrelevant or had been satisfied.

[3] Before arguing its motion, the defence sought to cross- examine the inspector on his affidavit. The presiding justice of the peace refused to permit the cross-examination and instead ruled on each disclosure request.

[4] The respondents applied for certiorari to quash the justice of the peace's ruling. The reviewing Superior Court justice granted the application, holding that the refusal to allow cross-examination was a breach of natural justice and, therefore, an error going to jurisdiction.

[5] The City appeals. It advances three submissions in support of its appeal:

(1) Section 141(3) of the POA precluded an application to quash the justice of the peace's order refusing to permit cross- examination;

(2) The justice of the peace's order did not amount to a denial of natural justice and therefore did not amount to a jurisdictional error; and

(3) Even if the justice of the peace's order was a jurisdictional error, the reviewing justice ought to have exercised her discretion to refuse certiorari.

[6] I agree with the City's second submission and, for that reason, would allow the appeal. [page404]

B. Facts

(1) The charges

[7] The corporate respondent 1353837 Ontario Inc. owns a 14.5- acre parcel of land in Stratford. The individual respondents, Ryan and Jacques, are principals in the numbered company. The land contains one large building and several smaller buildings.

[8] The City charged the respondents with numerous violations of the Building Code Act. These charges were laid by informations under Part III of the POA. The charges included obstructing inspectors in the performance of their duties, obstructing the visibility of orders under the Building Code Act, failing to comply with an unsafe order, failing to obtain a demolition permit, and removing a cease order, an order to comply and an unsafe order. In sum, the informations alleged that the respondents committed 14 infractions of the Building Code Act between June 21, 2002 and July 30, 2002.

(2) The debate over the city's disclosure

[9] The City first gave disclosure to the respondents in October 2002. Seven months later the defence requested further disclosure, and in July 2003, the City provided it. Still unsatisfied, the defence brought a motion for further disclosure. Ryan filed an affidavit in support of the motion in which he requested 18 items of additional disclosure. In response, the City filed the affidavit of its Chief Building Inspector, David Carroll. For one of the 18 items, Carroll appended additional documents to his affidavit. For the remaining 18 items, Carroll said either that the City had disclosed everything it had or that Ryan's requests were not relevant.

[10] The defence asked to cross-examine Carroll on his affidavit. This request led to the order under appeal. The record conflicts on whether the City agreed to produce Carroll for cross-examination. The defence said that it did; the City says otherwise. I do not propose to resolve this conflict. I prefer to decide the debate on its merits.

(3) The decisions of the justice of the peace and the Superior Court

[11] On March 22, 2004, the justice of the peace heard the motion for additional disclosure. At the outset of the hearing, counsel for the respondents insisted on cross-examining Carroll on his affidavit before proceeding with the motion. The justice of the peace refused to permit cross-examination before she knew what was in dispute. Over defence counsel's objection, she [page405] insisted on hearing counsels' submissions on the 18 disputed items. Counsel for the respondents acknowledged that he had already received disclosure of four of the requested items. The justice of the peace ruled on the remaining 14 items: she ordered disclosure of three, ruled that three were not relevant, and on eight of the requested items, accepted the City's position that it had disclosed all that it had.

[12] The respondents applied to the Superior Court of Justice under s. 140(1) of the POA to quash or set aside the justice of the peace's order. The reviewing justice granted the application. She held that the justice of the peace's refusal to permit the respondents to cross-examine Carroll on his affidavit was a denial of natural justice and therefore a jurisdictional error. In her view, the right to cross- examination was fundamental to a fair hearing. She ordered that the City produce Carroll for cross-examination.

C. Jurisdictional Framework

[13] Under s. 140(1) of the POA, the Superior Court may grant relief "in the nature of mandamus, prohibition or certiorari" for "matters arising under this Act". In criminal and quasi- criminal proceedings, such as proceedings under the POA, the prerogative writs -- mandamus, prohibition and certiorari -- lie for jurisdictional error. Canadian courts have long accepted that a denial of natural justice or procedural fairness amounts to jurisdictional error rather than an error within jurisdiction. See R. v. Forsythe, 1980 15 (SCC), [1980] 2 S.C.R. 268, 112 D.L.R. (3d) 385. In language now familiar to Canadian lawyers, a court or tribunal that properly acts within jurisdiction, may nonetheless lose its jurisdiction if it denies an aggrieved party natural justice.

[14] An important question on this appeal is whether certiorari is available for a pre-trial ruling such as the one in issue. The City says that it is not available; the respondents say that it is. Superior court judges have not been unanimous in dealing with this question. See, for example, Ontario Securities Commission v. Caratel Ltd. (1992), 1992 7400 (ON SC), 10 O.R. (3d) 491, [1992] O.J. No. 1910 (Gen. Div.), affd (1993), 1993 8597 (ON CA), 12 O.R. (3d) 319, [1993] O.J. No. 641 (C.A.); R. v. DDM Plastics Inc. (1994), 1994 7309 (ON SC), 20 O.R. (3d) 362, [1994] O.J. No. 1806 (Gen. Div.), affd (1997), 1997 14541 (ON CA), 32 O.R. (3d) 652, [1997] O.J. No. 248 (C.A.); R. v. 1353837 Ontario Inc., [2005] O.J. No. 166, [2005] O.T.C. 34 (S.C.J.).

[15] The resolution of this debate turns on the interplay between ss. 141(3) and 116(1) of the POA. Section 141(3) forecloses certiorari for orders or rulings for which an appeal is provided. Section 116(1) provides for appeals from convictions or dismissals. [page406]

[16] In full, ss. 116(1), 140(1) and 141(3) of the POA state:

116(1) Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from a conviction or dismissal or from a finding as to ability, because of mental disorder, to conduct a defence or as to sentence.

140(1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.

141(3) No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise.

[17] The City contends that because the justice of the peace's order can be appealed if the respondents are convicted after a trial, certiorari is not available. I do not accept the City's contention. I agree that if the respondents are convicted, they could raise the justice of the peace's order refusing cross-examination as a ground of appeal against conviction. But, in principle, they are not required to wait until the end of a trial to challenge a ruling that denies them procedural fairness. This must be so on a straightforward reading of ss. 140(1), 141(3) and 116(1) of the POA. Section 140(1) authorizes an application for certiorari for a pre-trial ruling. Section 141(3) precludes certiorari applications for orders for which an appeal lies. Under s. 116(1), no appeal lies from a pre-trial order such as the one made by the justice of the peace. Thus, in my view, ss. 141(3) and 116(1) of the POA do not preclude the respondents' application.

[18] That said, applications for certiorari under the POA should be granted only rarely. I say that for two reasons. First, most erroneous pre-trial rulings or rulings made during a trial will be errors within jurisdiction. Numerous examples come to mind including an erroneous order refusing to disclose a document to the defence, an erroneous refusal to admit a document at trial, or an erroneous refusal to allow counsel to ask a question of a witness. Unless any one of these refusals had a fundamentally important impact on the fairness of the proceeding, each would be characterized as an error within jurisdiction, rather than an error going to jurisdiction. Each would be appealable only at the end of the trial as part of an appeal against conviction, dismissal or sentence.

[19] The second reason why certiorari applications should be granted rarely flows from the salient fact that prerogative writs [page407] are discretionary. The POA itself, in s. 141(4), contains a legislative limit on granting prerogative relief:

141(4) 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, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper.

[20] However, the court's discretion to refuse a prerogative remedy goes beyond s. 141(4). Even if a preliminary ruling or a ruling during a hearing denies a party natural justice, the court or tribunal retains discretion to deny prerogative relief and insist that the hearing proceed. The debate over whether a preliminary ruling denying procedural fairness entitles the aggrieved party to prerogative relief virtually as a right or whether the relief may be denied because there is an adequate alternative remedy -- for example, an appeal -- is a familiar one in administrative law. In administrative proceedings, the Supreme Court of Canada has favoured allowing the hearing to proceed. See Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1; and see also the decision of this court in Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483, [1994] O.

J. No. 1803 (C.A.).

[21] The typical reasons given for refusing judicial review at the beginning of or during a hearing in the face of an otherwise reviewable wrong include maintaining the integrity of the process, avoiding fragmenting or delaying the proceedings, and the availability of an appeal on a full record.

[22] This court has adopted a similar approach to prerogative relief in criminal proceedings. 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., this court upheld the refusal to quash a subpoena to a witness called to testify at a preliminary inquiry. Doherty J.A. explained the policy reasons supporting a non-interventionist approach to prerogative relief applications during criminal proceedings:

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 ...

These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should [page408] 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 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. A similar policy is evident in those cases which hold that interlocutory appeals are not available in criminal matters.

[23] Recently, in R. v. Arcand, 2004 46648 (ON CA), [2004] O.J. No. 5017, 192 C.C.C. (3d) 57 (C.A.), Rosenberg J.A. concluded that the policy considerations outlined by Doherty J.A. in Duvivier apply to proceedings under the POA. And Rosenberg J.A. added 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.

[24] Despite these policy considerations favouring a non- interventionist approach, the rare case will arise where a court is justified in intervening before or during a POA proceeding. A judge's erroneous ruling may make the proceedings so unfair that the interests of justice require the court to intervene and grant prerogative relief. The court may conclude that stopping the proceedings before the trial starts or at an early stage of the trial may be less costly and more efficient than to permit the flawed proceedings to go forward. In Duvivier, at p. 54 O.R., pp. 24-25 C.C.C., Doherty J.A. put it this way:

I stress, however, that this limitation on resort to Charter or extraordinary remedy relief during criminal proceedings has been judicially imposed and cannot be taken as the equivalent of an absolute privative clause barring all such applications. Where the circumstances are such that the interests of justice require immediate intervention by the superior court, that jurisdiction can and will be exercised.

[25] I turn now to the issues on appeal.

D. Analysis

[26] It is evident from the preceding discussion that I do not accept the City's first submission. Section 141(3) of the POA does not foreclose the respondents' application for certiorari. [page409]

[27] The City's second submission is that the justice of the peace's refusal to permit the respondents to cross-examine Carroll on his affidavit did not amount to a denial of natural justice. I agree with this submission.

[28] The rights at play on this appeal -- the underlying right to disclosure and the contested right to cross-examine -- are undoubtedly important rights. Disclosure consistent with the dictates in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83 ensures that the defence can make "full answer and defence" and therefore ensures a fair trial. In our adversarial system, cross-examination of a witness on a sworn statement is the main way of testing that witness's credibility.

[29] However, as invariably is the case, context matters. Had the justice of the peace refused to accede to defence counsel's request to cross-examine a City witness at trial, the refusal may have breached natural justice. Here, however, defence counsel asked to cross-examine during his motion for further disclosure. In my view, the justice of the peace's refusal to agree to his request did not deny the respondents procedural fairness. I have reached that conclusion for two related reasons. First, before agreeing to permit cross- examination, the justice of the peace was entitled to inquire why cross-examination was necessary. Second, defence counsel failed to show that it was necessary.

[30] Defence counsel and the justice of the peace staked out their respective positions at the beginning of the hearing. Defence counsel's position was simple and straightforward: Carroll swore an affidavit in response to the motion; therefore, before arguing the motion, the defence had an absolute right to cross-examine him and need not explain why it wished to do so. At pp. 9-10 of the transcript, defence counsel said:

MR. STARKMAN: Well, first of all, Your Worship, let me just say this, as a matter of law as a general proposition one has the right to cross-examine someone on an affidavit they filed in response to a motion. I mean, that's just I think generally understood that if you put someone forward who swears evidence and says I disagree with you for these reasons then the other side, that is my clients the defendants in this case, are entitled to test the evidence of that person and in this case Mr. Carroll has put forward an Affidavit sworn December 10, 2003, where he disagrees with much if not all of the statements made by Mr. Ryan in his Affidavit sworn in November, on November 5, I believe it was, in support of the motion. Now, if you would like me to go through each of those items I am prepared to do that but in my opinion that should be unnecessary.

Defence counsel repeated this position several times. For example, at pp. 2-3, he said:

MR. STARKMAN: But Your Worship, what I'm asking you to do is make a ruling. Either we're going to have the right to cross-examine Mr. Carroll or [page410] we're not. And I'm saying I have that right and the motion shouldn't be argued without us proceeding or having cross-examined Mr. Carroll. My friend has decided not to cross-examine Mr. Ryan, that's his choice, but I have a right to cross-examine Mr. Carroll before the motion is argued. So that's what I am asking for.

[31] The justice of the peace did not preclude cross- examination, but she first wanted to know why it was needed. At the beginning of the hearing, on pp. 8-9, she said this:

THE COURT: I have [considered] the request of the defence in relation to that they wanted the building inspector, Mr. Carroll, to be present to be cross-examined with his papers and documentation. At this point without hearing any arguments or hearing any reasons as to why specifically he should be here ... without hearing of any particular reasons in a particular sense as to why he would be required at this point I'm not going to do it. It's going to be a matter that I need to hear the specific disclosure issues and we'll address those specifically as opposed to just blanketly having someone come in to be cross-examined at will on all of the evidence, that is something that is appropriate for a trial situation as opposed to specific disclosure issues.

[32] A few minutes later, the justice of the peace reiterated that she would not order Carroll to attend for cross- examination unless the defence established that cross- examination was needed to decide the motion. At pp. 25-28 she said:

THE COURT: That is the point that you have not made clear to the court whatsoever as to why he should be here. We are looking at very specific issues here. What specifically is requested and what has not been provided, that's what we are looking at. Not reasons why someone thinks they should not be here or someone else's interpretation. I want your submission on each item as to why you want them and then I want the Crown's position as to if they have it in their possession and what's the Crown's position and then I'll rule on each of the items. We will continue as we are going as opposed to a fishing expedition to cross-examine at length items that are not relevant. These are the relevant issues, "a" through "r". We will go through each of those and I will hear submissions from both sides as to why you want that disclosure and I will make the ruling as we go. So we will continue.

At this point based on the arguments that were given I do not see fit to have him brought to court to be cross-examined. If there are specific items where he has relevant information to my decision than that is different. At this point I have not seen anything that indicates that his evidence is relevant to either the existence of the disclosure or the reason for it.

I am saying that I am not ordering him to come to court.

MR. SKINNER: Yet.

THE COURT: Yet. Unless I see some viable reason, some specific viable reason to do so. [page411]

[33] The justice of the peace insisted on going through all 18 disputed items. She heard submissions from both counsel on each item and then ruled whether disclosure would be ordered.

[34] In my view, by proceeding this way, the justice of the peace did not commit a jurisdictional error. In other words, she did not deny the respondents natural justice. In the context of their motion for further disclosure, the respondents did not have an absolute right to cross-examine Carroll on his affidavit. The justice of the peace was entitled to require the respondents to justify their request to cross-examine. If the respondents could not justify their request, the justice of the peace had the right to limit cross-examination or curtail it all together. At p. 340 S.C.R. of Stinchcombe, Sopinka J. discussed the role of the trial judge in resolving disputes over disclosure:

The trial judge may also review the Crown's exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated. I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high. Given this fact, and the obligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention of the trial judge. When they do arise, the trial judge must resolve them. This may require not only submissions but the inspection of statements and other documents and indeed, in some cases, viva voce evidence. A voir dire will frequently be the appropriate procedure in which to deal with these matters.

[35] I think it implicit in the reasons of Sopinka J. that, where disclosure disputes arise, a trial judge has the right to control the disclosure process. A justice of the peace has the same right. The right includes refusing unnecessary cross- examination. Here, the justice of the peace tried to control the disclosure process to avoid turning a cross-examination of Carroll into a "fishing expedition". If she erred, she erred within her jurisdiction.

[36] Moreover, the wisdom of the justice of the peace's method of proceeding became evident as the hearing progressed. In the accompanying chart, I have summarized the 18 items requested by Ryan in his affidavit, Carroll's affidavit response to each item, the positions of counsel on the motion if they differed from the positions taken in the affidavits, and the justice of the peace's ruling on each item.

[37] As the chart shows, at the hearing the defence agreed that it had disclosure of the first four requested items. The justice of the peace ordered disclosure of three other items. She ruled that three of the disclosure requests were irrelevant or unnecessary. [page412] Relevance was a matter for argument. Cross-examination would not have assisted in deciding on disclosure of these three items.

[38] That left eight items, which became the focus of the argument before the justice of the peace. On each item, counsel for the appellant stated that the City had made full disclosure and had no more material in its possession. Defence counsel contended that he was entitled to test counsel's statement by cross-examining Carroll. The justice of the peace accepted the statements of counsel for the City and refused to make any order for disclosure or to allow Carroll to be cross-examined.

[39] Again, if the justice of the peace erred, her error did not cause her to lose jurisdiction. Indeed, the decision of the Supreme Court of Canada in R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, [1994] S.C.J. No. 89 lends support to the justice of the peace's method of proceeding and her rulings. In Chaplin, Sopinka J. made two important points. First, he emphasized at para. 30 that when the Crown claims it has met its disclosure obligation, to obtain an order for further disclosure, the defence must establish a basis for its claim that the material exists:

In contrast to the above, in some cases, this being one, the existence of material which is alleged to be relevant is disputed by the Crown. Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of material the existence of which it is unaware or denies. Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence. The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce as set out above in the passages which I have quoted from R. v. Stinchcombe and R. v. Egger, supra.

[40] Here, the defence did not show any meaningful basis on which the justice of the peace could have concluded the City had additional relevant material in its possession. Instead, the defence simply repeated its position that it was entitled to test the City's assertions by cross-examining Carroll.

[41] Second, Sopinka J. noted at para. 31 that most disputes over the existence of additional relevant material can be resolved by oral submissions from counsel:

Although the obligation cast upon the defence which I have characterized as "a basis" is in the nature of an evidentiary burden, I prefer not to call it that because it can, and in many cases will, be discharged not by leading or pointing to evidence, but by oral submissions of counsel without the necessity of a voir dire.

That is how the justice of the peace sought to resolve this dispute. [page413]

[42] By requiring the defence to "provide a basis for its demand for further production", Sopinka J. sought "to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming disclosure requests". See Chaplin, supra, at para. 32. This is also what the justice of the peace sought to avoid. And, having considered the submissions of counsel about the 18 disputed items, she concluded that cross-examination of Carroll was unnecessary. In so concluding, she did not lose jurisdiction.

[43] In my view, in finding jurisdictional error, the reviewing Superior Court justice made two errors: first, she did not consider the context for the defence request to cross- examine Carroll, and second, she did not consider whether the defence had established any basis for cross-examining him. Had she addressed these two matters, the reviewing justice ought to have concluded, as I have, that the justice of the peace's ruling did not deprive the respondents of procedural fairness.

[44] As I have found no jurisdictional error, I need not resolve the City's alternative position, that even if the respondents established a breach of natural justice, the reviewing judge ought to have exercised her discretion and declined to grant certiorari. I will say that exercising this discretion would have been a prudent course to take, and would have been consistent with reserving certiorari of preliminary rulings for the exceptional case where the interests of justice require that the writ be issued.

E. Conclusion

[45] In refusing to allow the defence to cross-examine Carroll on its motion for further disclosure, the justice of the peace did not commit an error going to jurisdiction. I would therefore allow the City's appeal, set aside the order of the reviewing Superior Court judge and remit the case to the justice of the peace for trial.

[46] Both sides sought costs if successful on the appeal. The reviewing justice ordered that the costs of the application before her be reserved to the trial judge.

[47] Under s. 142(5) of the POA, the court has authority to award costs "that it considers just and reasonable". However, as Rosenberg J.A. said in R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819, 180 C.C.C. (3d) 498 (C.A.), at p. 519 O.R., p. 541 C.C.C.: "The rule in proceedings under the Act is that generally no costs are awarded either against the Crown or the defendant." Here, no factors justify departing from the general rule. I would therefore set aside the costs order of the reviewing justice and order no costs of the application before her or of the appeal.

Appeal allowed.

[Editor's note: Chart omitted. Please see paper copy.] [page417]