Court File and Parties

Ontario Court of Justice

Date: 2018-11-26

Court File No.: Brampton 3111 998 16 7242

Between:

Her Majesty the Queen

— and —

Mark Sodja

Before: Justice G.P. Renwick

Heard on: 26 November 2018

Reasons for Judgment released on: 26 November 2018

Counsel

J. Kingdon — counsel for the Crown

N. Stanford — counsel for the defendant Mark Sodja

Ruling on Application for Particulars

RENWICK J.: (Orally)

Introduction

[1] The Applicant has filed a written Application for relief based upon alleged violations of 7, 9, 10(a), 10(b), and 12 the Canadian Charter of Rights and Freedoms ("Charter"). The Applicant has specifically set out in its written Application the eight grounds upon which it will rely. As well, the Applicant has provided a "Detailed Statement of the Specific Factual Basis for the Application." This statement is comprised of 11 full paragraphs that refer to specific allegations. The Application was stamped as received by the court on 01 November 2018.

[2] The Applicant complains that the response to its Application is deficient in three ways: it is silent in response to some grounds; it is deficient in response to other grounds; and it was filed late last week and not in accordance with the Rules. As a result, the Applicant seeks disclosure of certain items and particulars in respect of the prosecutor's response. The disclosure sought relates to the decision to hold the Defendant for a show cause hearing in lieu of releasing the Defendant once he had been discharged from the hospital.

[3] The Respondent prosecutor has responded to the Application by telefacsimile sent 08:11 on 22 November 2018. The Form 2 "RESPONSE" is exceptionally brief. It is 10 sentences in length. The response makes it obvious that the prosecutor denies any police misconduct, it relies on the common law to justify the actions of the police ("The initial traffic stop and investigation of the Applicant were authorized by law" and "The initial traffic stop occurred after the officer observed extremely erratic driving on the part of the Applicant"), the demand for breath samples ("The arresting officer had reasonable grounds to arrest the Applicant and demand samples of his breath" and "The officer's grounds to arrest were based on the erratic driving, the Applicant's difficulty with physical tasks, and the very strong odour of an alcoholic beverage on his breath"), the use of force ("The use of force by police was reasonable under the circumstances" and "The police use of force occurred after the Applicant refused multiple times to get in the police cruiser after his arrest, and after he was advised that force would be used if he did not comply"), and the fact that the "Applicant spoke to duty counsel on two occasions in the course of the investigation."

[4] The prosecutor argues that the Rules were changed to remove detailed precision in favour of concision. Further, the response puts the Applicant on notice what the arguments in response will be. Lastly, the prosecutor requests further particulars of its own in order to respond any further to the alleged breaches of s. 10 of the Charter.

Discussion

[5] I have heard argument by both sides. I have also been advised that this is a re-trial due to a mistrial that was granted part of the way into the arresting officer's evidence.

[6] In terms of the timing of the prosecution's response, the Applicant is correct that the Respondent has failed to comply with Rule 3.1(2) which requires the response to be "served and filed with proof of service at least 15 days before the date of the hearing of the application." However, I note that the Application was not served in accordance with Rule 3.1(1), "at least 30 days before the date of the Hearing of the application."

[7] I also note that I had ruled on a pre-trial application for disclosure of third-party records on 05 September 2018. I only point this out because it is obvious that the Applicant had retained counsel well before the requisite time period in order to have complied with the rules it now seeks to have enforced.

[8] The Criminal Rules of the Ontario Court of Justice appear on the court's website. According to the note at the end of the Rules, they were revised in July 2012. The Rules include and begin with the following declaration and direction:

Fundamental Objective

1.1 (1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.

(2) Dealing with proceedings justly and efficiently includes

(a) dealing with the prosecution and the defence fairly;

(b) recognizing the rights of the accused;

(c) recognizing the interests of witnesses; and

(d) scheduling court time and deciding other matters in ways that take into account

(i) the gravity of the alleged offence,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the accused and for others affected, and

(iv) the requirements of other proceedings.

Duty of Counsel, Paralegals, Agents and Litigants

(3) In every proceeding, each counsel, paralegal, agent and litigant shall, while fulfilling all applicable professional obligations,

(a) act in accordance with the fundamental objective; and

(b) comply with

(i) these rules,

(ii) practice directions, and

(iii) orders made by the Court.

Duty of Court

(4) The Court shall take the fundamental objective into account when

(a) exercising any power under these rules; or

(b) applying or interpreting any rule or practice direction.

[9] I have considered the Applicant's submissions. Essentially, the complaint relates to the form and substance of the prosecutor's brief response to its Charter Application.

[10] Interestingly, the Applicant is satisfied that the Crown has given sufficient particularity for its response to the second and third grounds in the Application (the grounds to arrest and make a breath demand, and the use of excessive force, respectively). I agree that there is no response by the prosecutor to the first ground alleged (s. 10(a) complaint) and there is a lack of precision to the fourth ground alleged (no access to counsel at the first reasonable opportunity), the fifth ground alleged (s. 10(b) informational component complaint), the sixth ground alleged (no privacy during the implementational component of s. 10(b) rights), the seventh ground alleged (s. 9 complaint regarding being held for bail), and the eighth ground alleged (abuse of process to prosecute in the circumstances).

[11] Nonetheless, I find that the Applicant is not prejudiced in establishing the Charter violations alleged for the following reasons:

i. The Applicant has retained counsel for over two months and has had an opportunity to seek clarification from the prosecutor before bringing the Charter Application and the Application for particulars;

ii. The Applicant now has disclosure of everything that has been sought, as of today, except for some of the items it now seeks (relating to the Show Cause Hearing Report);

iii. The parties have agreed to have the Charter Application run alongside the trial so that the evidence for both is heard during a "blended" voir dire, as opposed to requiring the Applicant to lead evidence on its Application. This procedure favours the Applicant by providing a chance to hear the evidence likely to be relied upon by the prosecution to defend the Charter Application;

iv. The matters are not complex; and

v. The Applicant has had some knowledge of much of the arresting officer's evidence for some time.

[12] I have also taken into account the directions in Rule 1 requiring justice and efficiency in determining these matters.

Conclusion

[13] At this stage, the Application for particulars is dismissed without prejudice to renew the Application after the arresting officer has testified in chief.

Released: 26 November 2018

Justice G. Paul Renwick