R. v. Wolf, 2007 ONCA 327

CITATION: R. v. Wolf, 2007 ONCA 327

DATE: 20070501

DOCKET: M34500 (C42740)

COURT OF APPEAL FOR ONTARIO

GOUDGE, LANG and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent (Responding Party)

and

NIKOLAUS WOLF

Applicant/Appellant (Moving Party)

Counsel:

Russell Silverstein, for the Applicant

Roger A. Pinnock, for the Respondent

Ronald G. Slaght, Q.C. for the Proposed Witness

Heard: April 5, 2007

On motion compelling a proposed witness to attend before a special examiner to give evidence pursuant to s. 683(1)(b)(ii) of the Criminal Code.

ENDORSEMENT

[1] The only issue on this motion is whether a proposed witness, who has both delivered an affidavit in this proceeding and has agreed to answer questions on that affidavit, should be examined orally before a special examiner, as requested by the applicant, or by way of written interrogatories, as requested by the Crown and the proposed witness.

[2] The proposed witness is Fred Graham who was an assistant Crown attorney involved in the prosecution of the applicant on fraud charges. Mr. Graham has since been appointed to the bench. Since this motion deals with the proposed witness as a Crown attorney, we refer to him as Mr. Graham in these reasons.

[3] The applicant’s conviction appeal is based on the sole ground of abuse of process, an issue that he did not raise at trial. In essence, the applicant alleges on appeal that Crown trial counsel abdicated their prosecutorial discretion to the complainants. He argues that the Crown resiled from an initial offer to withdraw the outstanding charges against him in return for restitution of $14,000 and, at the instance of the complainants, insisted instead on restitution of $17,000. In this manner, argues the applicant, the Crown conducted the prosecution as a means of enforcing a civil debt. There are factual issues surrounding this allegation.

[4] In support of his appeal, the applicant seeks to introduce as fresh evidence his own affidavit as well as affidavits from the Crown counsel involved in his prosecution. Two of the Crown counsel involved in the prosecution have filed affidavits and have already been examined before a special examiner. The third, Mr. Graham, has filed an affidavit and has agreed to answer questions concerning the contents of that affidavit; however, he argues that his examination should be conducted by way of written interrogatories and responses, rather than by oral examination.

[5] Section 683(1)(b)(ii) of the Criminal Code provides:

For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(b) order any witness who could have been a compellable witness at the trial, whether or not he was called at the trial,

i to attend and be examined before the court of appeal, or

ii to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purposes; [Emphasis added.]

[6] It is unnecessary to consider in this case the scope of the pre-conditions for such an examination because both Mr. Graham’s counsel and the respondent conceded in oral argument that Mr. Graham could have been a compellable witness at the trial. Since the Crown’s trial brief is missing and because the prosecution approach is at issue, they also acknowledged that Mr. Graham’s evidence is both “likely relevant” and “necessary” to the appeal. Accordingly, it is in the “interests of justice” both that his affidavit be adduced as evidence and that he be examined in some fashion on the contents of that affidavit.

[7] The examination of the other two Crown counsel, which was done orally, did not challenge their credibility, but only the reliability of their recollections. The examinations, which were held before a special examiner, were not conducted in an adversarial or confrontational manner. Facts were simply put to each of the deponents in an effort to refresh their memory. Counsel agree that any oral examination of Mr. Graham would be conducted in a similar manner since, similarly, his credibility is not at issue, only the reliability of his recollection of the events at issue.

[8] Section 683(1)(b)(ii) gives the court a discretion regarding the examination of the proposed witness. Implicit in this is an acknowledgment that Mr. Graham’s subsequent appointment to the bench does not affect the issue. This makes sense because Mr. Graham’s involvement in the trial prosecution was in his position as a Crown counsel, which predated and is unrelated to his current judicial role.

[9] Mr. Graham’s counsel takes the position, however, that it would be unseemly for a sitting judge to attend before a special examiner, particularly when written interrogatories would be sufficient to obtain the required evidence. On the other hand, counsel for the applicant points to the limitations inherent in written interrogatories and the absence of interchange and spontaneity available in that method of examination.

[10] We agree that there are limitations to written interrogatories, which include potential delay when new questions arise from answers given. In our view and in the circumstances of this case where the objective is to refresh the witness’s recollection, written interrogatories would unnecessarily curtail spontaneous responses to a series of questions posed for the purpose of jogging the witness’s memory. In contrast, oral examination will give counsel the opportunity to follow Mr. Graham’s oral answers with questions arising from those answers, with the result that the examination can be completed both effectively and expeditiously. Most importantly, the examination will be about events arising from Mr. Graham’s previous role as Crown counsel, not from his current judicial role, and it will seek to test the reliability of his memory, not his credibility. There is no reason to conclude that his oral examination would impair the performance of his judicial role. For these reasons, in our view, oral examination is in the interests of justice.

[11] Accordingly, we exercise our discretion to order that Mr. Graham’s examination regarding the reliability of his recollection of the evidence set out in his affidavit be conducted orally. The examination will be conducted by Mr. Silverstein before a special examiner at a location to be agreed upon by the parties. Given our disposition, we need not consider Mr. Silverstein’s argument that s. 683(1)(b)(ii) does not permit the use of written interrogatories.

“S.T. Goudge J.A.”

“S.E. Lang J.A.”

“Paul Rouleau J.A.”