Information and Court Details

Information No.: 3111-998-13-7450-00

Ontario Court of Justice

Her Majesty the Queen v. Leslie McGregor

Ruling

Before The Honourable Justice Stribopoulos

On July 8, 2015, at Brampton, Ontario

Appearances

• E. Beaton – Counsel for the Crown
• D. Lent – Counsel for Leslie McGregor

Ruling

STRIBOPOULOS, J.: (Orally)

Ms. Beaton, on behalf of the Crown, has brought an application to recall Constable Bell who previously testified as a Crown witness on September 22nd, 2014. A few words are necessary to put the Crown's application in context.

Prior to the application I was in the midst of hearing final submissions from defence counsel, Mr. Lent.

In terms of sequencing, the defence was making submissions first as it elected not to call any evidence on either the trial proper or in support of its Charter application. During his submissions Mr. Lent argued that Constable Bell violated his client's right not to be arbitrarily detained, which is guaranteed by section 9 of the Charter. In that regard Mr. Lent submits that on the evidence heard at trial, it would appear that Constable Bell stopped Mr. McGregor's vehicle while it was positioned on private property, specifically a plaza located at Airport Road and Triple Crown Drive in the City of Brampton. Mr. Lent argued that there is no legal authority for the police to carry out traffic safety or sobriety check stops of motorists on private property.

In seeking to recall Constable Bell, Ms. Beaton argues that the notice of application previously filed by the defence failed to particularize a Charter claim of the kind that has now been raised by Mr. Lent in his submissions. She argues that if the Crown had been on proper notice that this specific issue would be raised, she would have asked Constable Bell questions to elicit evidence relevant to the Charter issue that the defence has now presented for consideration. For example, the Crown might have elected to ask Constable Bell specific questions regarding the precise location of the stop, where Mr. McGregor was when the officer first observed him and whether the officer saw Mr. McGregor's vehicle travelling on a public roadway before his car was stopped in the parking lot. Based on the case law, these would all appear to be questions relevant to the Charter issue that Mr. Lent has now raised.

Mr. Lent strongly opposes the Crown's request. In terms of his failure to provide more specific notice of this particular issue, he points out that the disclosure that the Crown provided to the defence did little to alert him to the fact that the location of the stop was a potentially live question. For example, the synopsis prepared by the police clearly indicates that the defendant was stopped "on Airport Road", there is no mention of the stop on private property. As a result Mr. Lent explains that he only became aware of this potential Charter issue when Constable Bell testified. In other words, he learned of it exactly when Ms. Beaton did. As a result, Mr. Lent argued that the defence should not be faulted for failing to alert the Crown that the location of the stop would be the subject of Charter argument.

Further, Mr. Lent submits that it would be inappropriate and entirely unfair to allow the Crown to recall Constable Bell, at this stage, so that it can try to shore up its case. He submits that such a ruling, at this juncture in the process, would bestow an unfair advantage on the Crown given that Ms. Beaton has now heard the defence's submissions. As a result, Mr. Lent submits that if the court is seriously contemplating allowing the Crown to recall Constable Bell, the more appropriate course of action would be to declare a mistrial.

In contrast, Ms. Beaton responds that it would be unfair to foreclose the Crown from recalling Constable Bell. She notes that she is not arguing that the defence should be precluded from raising the legality of the vehicle stop now because of deficient notice, rather, she argues that in doing so the court should ensure that any prejudice to the Crown for the late-breaking notice is alleviated by allowing it to elicit evidence relevant to the issue now presented.

Legal Framework

The Rules of the Ontario Court of Justice specifically require the defence to serve and file a notice of application where a violation of the Charter is alleged and a remedy, like the exclusion of evidence, is being sought. A notice of application is not a mere placeholder. Rule 2(1) specifically requires that the notice provide:

(a) a concise statement of the subject of the application;

(b) a statement of the grounds to be argued; and,

(c) a detailed statement of the factual basis for the application, specific to the individual proceeding.

In Blom, the Court of Appeal recognized that these Rules exist to ensure the fair, just and expeditious determination of Charter issues and thereby enhance the quality of the administration of justice, see R. v. Blom (2002), 61 O.R. (3d) 51 (C.A.) at para. 21. The goal is to avoid unfair surprise so that:

Both parties have adequate notice of the factual and legal basis for the Charter application.

See Blom at paragraph 21.

As a result, the failure to comply with the Rules, for example, the notice requirement, is not necessarily fatal to a Charter application. Rather, the key consideration is prejudice. If there is no real prejudice, inadequate notice should not prevent the Charter application from being considered on its merits. Further, even where there is prejudice, if there is some way of ameliorating it, short of refusing to consider the Charter argument, then that alternative should be preferred, see Blom at paragraph 22. See also R. v. Loveman (1992), 71 C.C.C. (3d) 123 at 127 to 28 (Ont. C.A.).

Court's Analysis

Here, given the disclosure provided by the Crown, I can find no fault with the defence in failing to avert the specific issue now being raised regarding the legality of the vehicle stop in the original notice of application that was filed back in February 2014. Nevertheless, once it became apparent to the defence, at least by the completion of Constable Bell's direct evidence, that the legality of the vehicle stop would be the subject of Charter argument, I think that the defence was obligated to alert the Crown and the Court to this fact. In my view, the defence has an ongoing obligation to notify the Crown and the Court if and when it realizes that a previously unanticipated Charter issue has emerged at trial that it intends to raise and seek redress for.

I think this is rather dissimilar to the situation where there has been some failure on the part of a Crown to prove some essential element of the offence charged. Quite obviously, the defence has no obligation to alert either the Crown or the Court to such deficiencies before closing submissions. To the contrary, I think a defence lawyer who did such a thing would be grossly negligent and undermining an accused person's right to make full answer and defence to the charges.

Potential Charter issues are rather different. Unlike the offence charged, the elements of which are limited and known based on the statutory wording of the offence creating provision, the potential field of Charter issues that can be raised in any given case is expansive in the extreme. Hence, the obligation on the defence to provide timely notice and particulars of Charter arguments to be raised so that the Crown can be alerted to the live issues in the case and call any evidence at its disposal relevant to those issues. It would be a terribly inefficient trial process if the Crown were required to try and anticipate every conceivable Charter claim that a defendant could potentially raise and endeavour to elicit evidence to answer each and every such a claim.

In the circumstances of this case, I think it would be unfair to the Crown to foreclose it from calling evidence to answer the specific Charter claim now being raised regarding the legality of the vehicle stop. In short, until Mr. Lent's submissions this afternoon, the Crown would have had no idea that the legality of the vehicle stop, based on its location, was a live issue in this case.

In the circumstances, given the late-breaking nature of the specific Charter issue that the defence has raised, I think there are really only two options: the first is to preclude the defence from raising the issue at this juncture. Ms. Beaton for the Crown does not seek such redress and to be frank, even if she had, I do not think that applying the principles set down in Blom, such an order would be warranted. Rather, in the circumstances, I think any potential prejudice to the Crown occasioned by permitting the defence to raise this issue now can be adequately addressed by acceding to its request to recall Constable Bell.

In all the circumstances, I frankly have difficulty seeing any unfairness to the defendant. The defendant enjoys no right to spring unanticipated Charter issues on the Crown at the eleventh hour in a trial proceeding. The Crown, like any litigant before our courts, is entitled to procedural fairness.

Decision

Accordingly, I am granting the Crown's application to reopen. The Crown will be permitted to recall Constable Bell to ask him discreet questions regarding the specific location and circumstances surrounding the vehicle stop and the defence will be permitted to cross-examine on those issues. That is my ruling.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Linda Lebeau, certify that this document is a true and accurate transcript of the recording of Regina v. Leslie McGregor in the Ontario Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario taken from Recording No. 3111_302_20150708_093448_30_STRIBOJ.dcr which has been certified by Jell Galloway in Form 1.

Date Linda Lebeau

Authorized Court Transcriptionist (ACT)

Member in Good Standing

PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORIZED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE AUTHORIZED COURT TRANSCRIPTIONIST (ACT)

Ontario Regulation 158/03 – Evidence Act

*This certification does not apply to the (Rulings, Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.

Transcript Ordered: July 30, 2015

Transcript Completed: August 31, 2015

Approved by Stribopoulos, J.: September 9, 2015

Ordering Party Notified: September 10, 2015