Court Information
Ontario Court of Justice (East Region)
Date: 2018-03-05 Court File Number: 7543392B
Parties
Between:
Her Majesty the Queen Prosecutor
-and-
Michael Gluvic Defendant
Court Details
Location: Belleville, Ontario
Presiding Judge: C. Peltzer J.P.
Heard: 31 January, 2018
Decision: March 5, 2018
Counsel
For the Prosecution: David Chatten
For the Defendant: John Bonin
Decision of the Court
1. Introduction
- C. Peltzer J.P.: The following are the reasons for my ruling on the s.7 Charter Application on the issue of outstanding disclosure.
(A) Background
On January 22nd, 2017 the defendant, Michael Gluvic, was charged with speeding 80 km/h in a 50 km/h Community Safety Zone, with the Defendant filing his Notice of Intention to seek a Trial on February 2nd, 2017.
Initial disclosure was requested on February 21st, 2017, which was subsequently received in part on April 26th, 2017. The Prosecution indicated in the disclosure package that it was of the view that disclosure was complete.
A second disclosure request was sent on April 27th, 2017 further requesting a series of outstanding items.
An agent appeared for the Defendant on June 7th, 2017, being the first trial date. The agent advised the Court that significant disclosure remained outstanding. On this date, the Prosecutor again advised that disclosure was complete and that nothing more would be provided.
The transcript from June 7th, 2017 indicates that the presiding Justice appeared annoyed with the outstanding disclosure issue and advised that he would adjourn the trial to another date, being October 11th, 2017; further indicating to the parties that it should not return before him.
The s.7 Charter Application was filed September 21st, 2017 to be heard on 11 October 2017 at trial.
On October 11th, 2017, the Applicant brought a motion that the Justice recuse himself as he was the same Justice who had presided on the previous trial date. The Justice recused himself and a further trial date of January 31st, 2018 was set.
On October 11th, 2017, the Prosecutor provided some verbal disclosure in response to a question from the Applicant.
On October 23rd, 2017, the Applicant made a third disclosure request for the outstanding items requested previously.
A final disclosure request was sent by the Applicant on December 20th, 2017, requesting the same outstanding items from his previous requests.
A s.11(b) Charter Application was filed with the Court on January 12th, 2018 given the Applicant's concern with delay on the proceeding.
On 31 January 2018, I seized myself with the Applications and Trial. Following arraignment, I became a court of competent jurisdiction with the authority to preside over the trial itself and any Charter remedies being sought by the Applicant.
It quickly became apparent that there was insufficient time to complete the s.7 Charter Application hearing much less the s.11(b) and the Trial (if necessary) on that date. The Trial was then adjourned to today's date to provide reasons on the s.7 Application.
(B) Issues
- The issues to be addressed in this Application are:
a. What is the binding caselaw regarding the prosecution's disclosure obligations in a speeding case under the Highway Traffic Act?
b. Is the Prosecution required to satisfy the request by the Applicant for the outstanding items?
c. Has any remaining outstanding disclosure that the Applicant is entitled to triggered an infringement of the Defendant's s.7 Charter rights?
(C) What is the Binding Caselaw Regarding the Prosecution's Disclosure Obligations in a Speeding Case Under the Highway Traffic Act?
The binding caselaw relevant to this Application can be found in Region of York v. McGuigan, 2017 ONSC 436 [hereinafter McGuigan].
This case specifically answered the questions surrounding the disclosure obligations of the prosecution in Highway Traffic Act cases.
The McGuigan case made several specific findings in relation to disclosure:
a. That:
the York Regional Police and the provincial prosecutor are not a single entity: McGuigan. Ibid. at para. 15, citing R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para 25.
b. That:
…unless the document can properly be characterized as "fruits of the investigation", there is no obligation on the prosecutor's office to provide it as part of routine disclosure in speeding offences. This is so even if there is a reasonable possibility that the disclosure may assist Mr. McGuigan in the exercise of his right to make full answer and defence.
As a result, I find that the justice of the peace erred in ordering that the testing procedures are required to be disclosed as part of the Stinchcomb first party disclosure obligations of the Crown.
Ibid at paras. 32-33.
c. That:
For the same reason that Watt J.A. concluded that the records sought in Jackson [R. v. Jackson, 2015 ONCA 832] were not part of the "fruits of the investigation" to be captured by first party disclosure, I find that in this case the testing procedures did not qualify as a consequence of the investigation of Mr. McGuigan. Ibid at para. 31.
- R. v. McNeil, 2009 SCC 3 stated that:
it is important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in "fishing expeditions" for irrelevant evidence
Para 28.
- Justice Rosborough in R. v. Collins, [2010] A.J. No. 666, observed that:
…part of the practical limits of the system of justice are proper boundaries for the prosecution's disclosure obligations. And further that "these concerns are multiplied in the context of requests for production in the hundreds of thousands of regulatory offences prosecuted in Alberta courts each year."
- In R. Collins it was also observed that:
The vast majority of regulatory offences do not rise to this level of complexity, however. Some regulatory offences are so simple, in fact, that they are classified as absolute liability offences. Others, including most "traffic" violations are minor and routine. When one takes into account all bylaws created by delegated legislative authority to every municipality in the province, it is safe to conclude that the majority of regulatory offences are simple matters requiring effective but also efficient litigation processes. In the case of regulatory offences: 1) where the case for the prosecution is not complex; 2) the consequences of the alleged wrongdoing are not grave; and 3) the penalties are not significant, court have been prepared to "draw the line" at a reduced level of disclosure.
At para 57.
In Mississauga (City) v. Atis, 2017 ONCJ 260, Justice Fisher-Grant followed the reasoning in McGuigan in a similar disclosure case involving speeding.
Justice Fisher-Grant stated in her decision:
a. That:
While I am mindful of the defendant's right to make full answer and defence, this request if granted on such sparse assertions would open the flood gates of disclosure requests.
At para. 8.
b. That:
The matter before me is a speeding charge issued as a Part 1 offense. It is an absolute liability offence. There is no evidence before this court to suggest that it is anything other than minor and routine. Although the allegation is of a higher speed violation the consequences are of a fine. If convicted Mr. Atis may face collateral consequences imposed by the Ministry of Transportation related to demerit points. The officer's notes included in the application record encompass 3 half pages and 4 lines in the officer's note book. It is the very type of offense that the court in Collins suggests is appropriate for a "reduced level of disclosure". The request for the records her is based on a bald assertion that it would assist in cross examination of the officer. There is not further suggestion or evidence for the court to look to in assessing the potential likely relevance of the requested disclosure. The request as such is speculative. To order McNeil reporting in this type of matter without a basis for the assertion of likely relevance beyond the mere speculation offered here would open the floodgates to protracted, complicated processes that the POA seeks to avoid.
Ibid at para 13.
(D) Is the Prosecution Required to Satisfy the Request by the Applicant for the Outstanding Items?
- In this case, the remaining outstanding items requested by the Applicant are not required to be disclosed, given the state of the caselaw noted above and specifically:
a. There is no evidence that the requested Will-say exists. Any such request is not a requirement to fulfill disclosure obligations in this type of case. In the event that this was a more complicated regulatory case, a Will-say may be appropriate in those circumstances;
b. The request for manual excerpts are not first party records, notwithstanding that some or all of the materials may be in the actual possession of the prosecutions office. The portions of the manual requested remain third party records and are not properly "fruits of the investigation" are therefore do not have to be disclosed. Any partial disclosure by the prosecution's office of manual contents is discretionary and not mandatory. Although disclosure of some or all parts of the operating manual may assist in cross-examination, there is not a sufficient basis or air of reality of concerns about the operation of the device from the offence date to warrant disclosure. Even if there was, the appropriate forum for such a request is a formal O'Connor third party application.
c. It appears that all notes have been disclosed. Any gaps or omissions in the disclosed notes relating to testing procedures or operations can be addressed in cross examination.
d. The location of the tests conducted is a proper line of questioning in cross examination.
e. Copies of qualification certificates of the officer are not required to be disclosed. The officer can be cross examined on these issues in the event that inconsistencies arise.
(E) Has Any Remaining Outstanding Disclosure That the Applicant is Entitled to Triggered an Infringement of the Defendant's s.7 Charter Rights?
- Given my findings above, there are no items of disclosure outstanding that are required to be provided by the prosecution at this time and as such no remedy is required. The s.7 Charter Application is therefore dismissed.
Released: March 5, 2018.
Justice of the Peace C. Peltzer