Court File and Parties

Court File No.: [Not specified]

Location: London, Ontario

Date: May 28, 2014

Ontario Court of Justice

Between:

ATTORNEY GENERAL OF CANADA (ON BEHALF OF HEALTH CANADA), LOUIS PROULX

Applicants

-and-

DEREK PEDRO

Respondent

-and-

HER MAJESTY THE QUEEN

Respondent

Reasons for Decision on Application to Quash Subpoena

Counsel:

• Derek C. Allen (Department of Justice Canada) — for the Applicants
• Kimberly Johnson — Public Prosecution Service of Canada
• Paul Lewin — for Derek Pedro

Before: Justice Jonathon C. George

Decision

[1] Health Canada brings this motion, seeking to have the Subpoena of Louis Proulx, its Manager of Litigation, quashed; or in the alternative an order excusing Louis Proulx from testifying.

[2] Derek Pedro is alleged to have committed several offences in contravention of the Controlled Drugs and Substances Act. He is jointly charged, but his co-accused have no interest in this application.

[3] The preliminary inquiry into this matter has commenced, and is ongoing. The Crown's case is completed. Mr. Pedro wishes to call evidence, specifically a witness from Health Canada to speak on the following:

• "a number of issues respecting" the Marihuana Medical Access Regulations (MMAR) and the Marihuana for Medical Purposes Regulations (MMPR).
• the choice of seeds available for purchase by an MMAR medical marijuana grower.
• if the sale is limited to any one particular strain, what are the reasons behind that restriction?
• any research or documentation on the medical efficacy of different strains.
• whether Health Canada has received any feedback from patients, growers, or other affected parties on the seeds sold through Prairie Plant Systems?
• the policy reasons behind those sections of the MMPR which permit producers licensed under that regulation to purchase or otherwise obtain seeds and plants from growers under the MMAR.
• Health Canada's explanation for requiring the submission of an E2 form.

[4] Mr. Pedro's counsel has inquired of Health Canada in an attempt to learn who could best give this evidence and produce that documentation. Health Canada has refused to identify anyone who could assist. As a result, Louis Proulx has been subpoenaed to give evidence and to bring with him anything in Health Canada's possession or control that relates to Mr. Pedro's outstanding charges and the issues outlined above. It is not anticipated Mr. Proulx can answer these questions, but that he can identify someone who could.

[5] At trial Mr. Pedro will be challenging the constitutionality of section 5(1) of the Controlled Drugs and Substances Act, requesting that it be declared of no force and effect. Of course a preliminary hearing judge has no ability to consider that remedy, but this is the basis upon which the proposed evidence is relevant. It is agreed by all that, were this evidence admitted, it would not be material to the primary function of a preliminary hearing, which is to determine whether there is sufficient evidence to warrant a committal to stand trial. It would essentially be permission to explore, outside of the evidence proffered by prosecutors, a secondary issue as a way to lay a foundation for the anticipated challenge.

[6] Counsel for Mr. Pedro argues that this area is highly relevant and that the sought after evidence admissible. He also chastises Health Canada for not simply providing the name of someone who could speak to the proposed issues. He takes exception to the Applicant's assertion that this is nothing more than a fishing expedition and end-around way of obtaining third party records. In setting out this argument, he relies heavily on the Ontario Court of Appeal's comments in R. v. Dawson, 123 C.C.C. (3d) 385, and in R. v. George, 69 C.C.C. (3d) 148. Both cases, albeit in different contexts, stand for the proposition that the defence can, at a preliminary hearing, pin down witnesses on areas that, while not relevant for that hearing, will be at trial. This is most commonly seen in the context of anticipated Charter challenges and related police conduct.

[7] A preliminary hearing judge cannot make an order that requires simply a production of documents (R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623). The defence, however, can ask questions and call evidence that addresses purposes ancillary to the hearing's primary function. This is well settled. The question is to what extent? To what lengths and at what cost can this be done?

[8] The Applicants argue the scope of what is proposed far exceeds what is acceptable. It is submitted the information sought goes beyond the incidental discovery purpose of a preliminary hearing. It is characterized as essentially an improper motion for document production, which, apart from that, has no focus whatsoever. Health Canada argues that this request, if granted, would result in a massive search of records and databases, with no real clarity as to how this would impact the ultimate constitutional question. The prosecution supports this position.

Relevant Statutory Provisions

[9] What are the relevant statutory provisions?

[10] Section 537(1)(g) and (i) of the Criminal Code of Canada provides that:

(g) a Justice acting under this Part (preliminary inquiry) may……receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them;

(i) regulate the course of the inquiry in any way that appears to be consistent with this Act……….

[11] Section 541(5) is of critical importance, much of this assessment dependent on its interpretation. It is set out below:

(5) the (preliminary inquiry) Justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies with such modifications as the circumstances require.

[12] As to the primary purpose of the preliminary inquiry, section 548(1) directs the Justice to:

(1)(a)(b) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or for any other indictable offence in respect of the same transaction.

[13] On the issue of compelling witnesses, there are two provisions of note. First, it is section 698 that permits the issuance of a subpoena:

(1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give attendance.

[14] Second, both counsel referenced section 700(2), which would apply directly were I to conclude I lack jurisdiction to quash a subpoena. The full section is reproduced below:

(1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession under his control relating to the subject matter of the proceedings.

(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.

Analysis

[15] These provisions make it abundantly clear that a preliminary inquiry judge has the ability to control and regulate the proceeding. The court is permitted to limit, with good reason, evidence and the calling of witnesses. I don't subscribe to the view this is simply an ability to determine what is or isn't relevant, and that anything arguably relevant should be given unlimited time and attention. Scope is a factor to consider. That is, I should look at whether or not an allowance to canvass something arguably relevant, will unduly prolong a matter or risk a venture into irrelevance. The latter being a particular concern when the purpose of the proposed evidence isn't well articulated.

[16] Mr. Pedro, in addition to citing Dawson and George, refers to the following passage in R. v. B(E), 154 O.A.C. 167, a 2002 decision of the Ontario Court of Appeal:

It is well established that the primary purpose of the preliminary inquiry in Canada is to determine if there is sufficient evidence to warrant committing the accused to trial. Such inquiries have traditionally been regarded, however, as having a second function or aspect, in the nature of a discovery opportunity, permitting an accused to discover the Crown's case against him or her and to explore the credibility of the Crown's witnesses and the availability of potential defences. This second function or aspect of the preliminary inquiry has been recognized as an important component of the constitutionally protected right of an accused to make full answer and defence.

[17] Mr. Pedro's argument is not complicated. It stresses the right to make full answer and defence, and all that that entails. Counsel relies on the cases mentioned earlier, along with others, all of which seem to stand for the same proposition, which is, as part of the right to make full answer and defence, relevance at the preliminary inquiry stage is not limited to committal, and must include Charter issues. To this, I believe counsel for the Applicant agrees. Where they differ is in whether this is primarily a fishing expedition and search for documents, or a legitimate secondary focus.

[18] I was referred to the case of R. v. Mernagh, an unreported decision of the Ontario Court of Justice (Court File No. 08-1959; Niagara), where defence counsel sought to call, at the preliminary inquiry, a Health Canada representative to specifically provide evidence about the MMAR. In that case the witness' testimony was anticipated to be the basis for a defence Charter application at trial. The issue was framed as whether or not the accused could call this witness at a preliminary hearing to explore this secondary purpose. In permitting the defence to call this witness and in rejecting the request to quash the subpoena, the court found that section 541(5) was not to be interpreted so narrowly as to permit the defence to call witnesses on only those issues relevant to committal.

[19] The court in Mernagh references and relies on the decision in R. v. Cover, 44 C.C.C. (3d) 34 (Ont. H.C.J.), one of the first cases to assess a preliminary hearing's function in a post-charter context. The issue was whether the defence could call and cross-examine a police officer, even though the Crown didn't call him as a witness. The preliminary hearing judge refused to permit this, a decision overturned on appeal. The review court cited most prominently the accused' ability to make full answer and defence and how this included the right to cross examine a police officer who was involved in the investigation.

[20] Counsel for Health Canada asks that I reject the reasoning in Mernagh, urging me to be guided by the reasoning in The Commissioner of the O.P.P. et al. v. Her Majesty the Queen Public Prosecution Service of Canada, 2014 ONSC 2212, a recent decision of Ontario's Superior Court. This was a drug matter that involved the interception of private communications. In response to the Crown's refusal to provide police policy directives, guidelines and protocols related to the tracking and handling of confidential informants and agents, the accused requested that the preliminary hearing judge issue subpoenas duces tecum to compel the production. The provincial court judge issued the subpoenas, to which the appeal court had the following to say at paragraphs 47 through 49:

The law is settled that a preliminary inquiry justice does not have jurisdiction to hear a disclosure application, be it a Stinchcombe/McNeil application, a Mills application, or an O'Connor application. Regardless of which application method is utilized, these are matters which can only be determined by a trial judge and not a preliminary inquiry justice.

On the record before him, I find that Justice Valente, in issuing the subpoenas which he issued, in effect granted a production order for documents which he knew the Crown had refused to disclose in the first instance and which were arguably in the possession of third parties. I find that Justice Valente, sitting as a preliminary inquiry justice, exceeded jurisdiction in doing so.

While production of the subject documents would no doubt be useful to the defence for the purposes of the preliminary inquiry, they are not in a position to compel their production at this stage. The respondents are entitled to bring a Stinchcombe/McNeil application and/or an O'Connor application for production of this material, the latter being on notice to the record holders. This will allow the applicant's a hearing on the issue of the status of the records and whether or not they should be produced. These applications must be brought before the trial judge.

[21] The question is, are the facts and issues before me, consistent with those in the O.P.P. decision or more in line with Mernagh? I conclude this is almost identical to the O.P.P. matter. In distinguishing the case at bar with Mernagh, I note there that defence counsel was not seeking the production of documents, and was able to clearly set out the questions to be asked the witness, which was to have him list those doctors who have previously made declarations pursuant to section 4(2)(b) of the MMAR. Distinguishable from Mr. Pedro's application, both in substance and scope.

[22] Having regard to Mr. Pedro's stated purpose, which I have highlighted in paragraph 3, and having reviewed the email correspondence exchange between Mr. Pedro's counsel and Louis Proulx, this is nothing more than a targeting of documents, records and research results. It is conceivable that there are legitimate questions that could be posed to someone from Health Canada, but any probative value, which I would say is likely remote, and definitely secondary to the information Mr. Pedro seeks within the records and documentation, is outweighed by the negative impacts that would arise from a further delay, and from the exercise of locating and producing an unknown number of written records, all items that would be more properly obtained in another forum.

[23] On that last point, I understand the argument that dealing with these issues at the front end is preferable to addressing them later on, which would run the risk of lengthening and complicating the trial, perhaps even inconveniencing witnesses and counsel. The argument is basically this: why not deal with the headache now and make the trial a less burdensome exercise. I agree that this should be considered, but as the most compelling aspect of the argument, should not rule the day. This, standing alone, as the primary potential benefit, does not make the subpoena and proposed areas of inquiry appropriate.

[24] I conclude that the subpoena of Louis Proulx is tantamount to an order for third party production of documents.

[25] What differentiates this from the many cases Mr. Pedro relies on, is the subpoena of Louis Proulx and the documents requested, have no relation to the charges or to alleged Charter breaches that arose during the course of the investigation, arrest or detention. Mr. Pedro will be challenging the constitutionality of legislation and related regulations. This is separate and independent of the events surrounding the charges, and cannot be properly characterized as an effort to discover the Crown's case.

[26] I will not permit the exploration of the surrounding purposes and background of the MMAR or MMPR. It is unfortunate, I agree, that Health Canada didn't simply supply the names of employees who could answer questions relevant to Mr. Pedro's concerns, and to then raise these same objections. However, as unfortunate as that may be, it is not my function to compel anyone to identify witnesses for a particular party's benefit. Mr. Pedro must, in my view, bring the appropriate application seeking production of these records.

Jurisdiction and Remedy

[27] What is the appropriate remedy? It is not entirely clear that I have the jurisdiction to quash a subpoena. Counsel for Health Canada suggests I do, as did Mr. Pedro's counsel, at least initially. The authority, if it exists, derives from and is founded in a provincial court judge's duty to "regulate the course of the…inquiry" (see section 537(1)(i)). The court in R. v. Huynh, [2008] O.J. No. 2466 (S.C.J.), a decision of Ontario's Superior Court, holds that I can. In any event, should that exceed my jurisdiction, I will nonetheless excuse Louis Proulx from testifying at this hearing pursuant to section 700(2) of the Criminal Code. I am also declaring that the production of further Health Canada witnesses and records is irrelevant to this inquiry.

Date: May 26, 2014

Justice Jonathon C. George