Court File and Parties

Ontario Court of Justice

Date: 2018-01-11

Court File No.: Newmarket 14 09038

Between:

Her Majesty the Queen

— and —

Richard Glen Allison

Before: Justice David Rose

Heard on: January 11, 2018

Reasons for Judgment released on: January 11, 2018

Counsel

Mr. L. O'Neill — counsel for the Crown

Mr. N. Stanford — counsel for the accused Richard Allison

Judgment

David Rose J.:

Introduction

[1] Mr. Allison is charged with several fraud related offences. The trial heard evidence on 4 days in November of 2017. There are three further days of trial scheduled on January 12, 15, 18, of 2018. I was told that the Crown expects to close its case after one more day of evidence. The trial was originally scheduled for 4 days.

[2] Just before the commencement of the trial Mr. Allison brought a Charter Application to stay the charges or exclude evidence. It was followed up with an Application on December 15, 2017 after the first four days of trial. When the matter appeared before me before the holiday break for scheduling I said to counsel that I would address scheduling the Charter Application once Mr. Stanford had supported his Application with an Affidavit and Factum. At that time Mr. Stanford advised that he expected to bring another Charter Application to stay the proceedings alleging a Charter violation under s. 11(b). That Application is not yet before the Court. There has already been one 11(b) ruling given by my sister Johnston J. It was handed down before Mr. Allison appeared before me for his trial. Justice Johnston denied that Application.

[3] Mr. Stanford and Mr. O'Neill appeared before me on January 9, 2017 to schedule a hearing so that I could hear Mr. Stanford about why I should afford time to hear one part of his December 15, 2017 Application, namely the allegation that Mr. O'Neill's conduct qua Crown Attorney supports a finding of a Constitutional violation. This is the ruling on that threshold issue.

Background

[4] The York Regional Police (YRP) investigation in this case included three different Production Orders. The first one was granted on September 23, 2014. The Second one was dated October 5, 2017, and the third dated on or about November 3, 2017. Det. Quibell was the Affiant and Applicant on all three.

[5] The December 15, 2017 Charter Application ("the Application") alleges that:

(i) The third production order was applied for 11 days prior to trial after the Crown received a Charter Application which sought to invalidate the first Production Order as a result of deficiencies in the first Production Order's Information to Obtain (ITO);

(ii) The Crown either instructed or agreed with Det. Quibell's decision to apply for the third Production Order and that the Crown assisted him in drafting the ITO for the third Production Order and then reviewed it and approved it before submission to a Justice;

(iii) Det. Quibell failed to make full fair and frank disclosure to the Justice in the ITO for the third Production Order.

(iv) The Crown felt that the first two Production Orders would be found invalid by a trial judge and so "Rather than attempting to defend the admissibility of the bank records under s. 24(2), the Crown did not file a response to the Applicant's Charter application and instead played an active role in obtaining a new, simultaneous production order";

(v) The Crown's reliance on the third Production Order will prolong this trial.

[6] The Application seeks relief in two forms: a Stay of Proceedings under s. 24(1) of the Charter, and alternatively exclusion of banking records from evidence under s. 24(2) of the Charter.

[7] Mr. Allison also seeks leave to Cross-Examine the Affiant of the Third Production Order Det. Quibell on three issues: (i) to confirm whether the Crown directed Det. Quibell to apply for the new production order; (ii) to confirm that Det. Quibell relied on the Applicant's Charter Application when drafting the ITO for the third production order; and (iii) to show that Det. Quibell deliberately mislead the issuing Justice by failing to make full, fair and frank disclosure to the issuing justice regarding the first two ITO's.

[8] There are broadly two allegations. One is against Mr. O'Neill insofar as he advised YRP to get the third aforementioned Production order because it was his belief that the Defence Charter Application to quash the first two Production Orders would succeed. In other words the Defence alleges that Mr. O'Neill used the Charter Application to get the police to re-do the first two to correct deficiencies outlined in Mr. Allison's Application. The second allegation of a Constitutional violation is broadly that Det. Quibell, qua affiant failed to make full, fair and frank disclosure. Having reviewed the Application, the first allegation, namely that of Crown impropriety is somewhat discrete from the second.

[9] I asked Mr. Stanford in submissions what he sought to prove in the Application at its highest. Mr. Stanford put it this way. First, the Crown provided Det. Quibell with the Defence Charter Application which caused Det. Quibell to apply for the third Production Order. His second argument is that Mr. O'Neill approved of the ITO for the Third Production Order and approved of its submission to the Court for signature. Mr. Stanford would argue that Det. Quibell failed to make full answer and defence and that this is visited, for Charter purposes, on the Crown as an abuse of process.

Legal Framework

[10] A trial Court has jurisdiction to make threshold determinations on whether to hear Charter Applications. This was canvassed in R. v. Pires; R. v Lising, 2005 SCC 66 at par. 35 where Justice Charron said:

The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

[11] Arguably it is with that in mind that Moldaver J. said in R. v. Jordan, 2016 SCC 27, at par. 63:

Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

Emphasis added

[12] Upon reviewing both decisions it strikes me that the "not frivolous" test from Jordan is easier to meet for the defence than the "reasonable likelihood" test from Pires & Lising. For that reason I would apply the test from Jordan.

[13] The Crown Attorneys Act R.S.O. Chapter C. 49 provides legislative guidance about the role of Crown Attorneys. Section 11 says that:

The Crown Attorney shall aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario, and, without restricting the generality of the foregoing, every Crown Attorney shall,

(a) to examine informations, etc. — examine informations, examinations, depositions, recognizances, inquisitions and papers connected with offences against the laws in force in Ontario that the provincial judges, justices of the peace and coroners are required to transmit to him or her, and, where necessary, cause such charges to be further investigated, and additional evidence to be collected, and sue out process to compel the attendance of witnesses and the production of papers, so that prosecutions may not be delayed unnecessarily or fail through want of proof;

Emphasis added

[14] The defence Charter Application materials include references to the Crown Policy Manual dated March 21, 2005. In the section titled "Police: Relationship with Crown Counsel" the manual says:

Police may seek advice from Crown counsel concerning legal issues arising in the investigation of offences. Crown counsel may ask the assistance of police in conducting further investigations and providing further information.

[15] Although rare, there are well known examples of Crown conduct which supports a finding of an abuse of process. Judge shopping would be one of them, see R. v. Regan, 2002 SCC 12. Bullying tactics such as threatening an accused with further charges if he or she doesn't plead guilty is another, see R. v. Babos, 2014 SCC 16. Arguably, the basis of such a finding is that the Crown has engaged in conduct which demonstrates that the Crown has engaged in conduct which is outside that of the role of quasi "Minister of Justice" at a minimum, see R. v. Boucher.

Analysis and Decision

[16] I have not been provided with any authority which stands for the proposition that a Crown attorney prosecuting a given case cannot act on a Charter Application to re-calibrate the case. Nor could there be. Charter Applications such as the one filed by Mr. Allison's counsel in October of 2017 before his trial are part of the public record as pleadings in the case. In order for the within Application to succeed on the allegations summarized above in paragraph 5(iv) the Applicant must establish that the Crown must, in law, ignore the Charter Application which is a public document by virtue of being filed with the Court. It must also show that the Crown falls into a breach of the Accused Charter rights by fulfilling his duty in acquiring further information or papers. I find that such an argument is frivolous. The test for Crown misconduct is extremely high, namely conduct which is "egregious and seriously compromises trial fairness and/or integrity of the justice system", see R. v Anderson, 2014 SCC 41. At its highest there is no allegation of Crown conduct which rises to that level. It is dismissed without the need for calling on the Crown.

[17] Although not strictly speaking necessary for this determination it is not lost on me that, had the allegation of impropriety against Mr. O'Neill been permitted to proceed it would have likely resulted in bringing in a new Crown Attorney at a late stage of the case. This would have likely resulted in further delay in a case where 11(b) is a live issue. I asked Mr. Stanford about this in submissions and he took the position that Mr. O'Neill was not probably barred from continuing to appear but may well be in a conflict of interest. It is axiomatic that a Barrister may not appear at a proceeding where his or her conduct is the very subject of the litigation. Had the Application been permitted to proceed it would likely have de-railed the case while new Crown counsel was brought in for a fraud prosecution which is of some complexity. That would have resulted in significant delay. To be clear, it is not a matter of a Constitutional "Sophie's Choice" insofar as Mr. Allison must choose between his rights under s. 11(b) or alternatively his right to allege Charter violations under this Application. Rather, the fact that the trial would be derailed is a backdrop.

[18] It is unusual to dismiss a Charter Application in this manner, but for the foregoing reasons the prong of the Charter Application outlined above in paragraph 5(iv) is dismissed. Should the balance of the Charter Application reveal further evidence which causes me to revisit this Application I invite Counsel raise it as soon as that is apparent.

Dated this 11th day of January, 2018

David S. Rose Ontario Court of Justice