ONTARIO COURT OF JUSTICE

CITATION: R. v. Francinelli, 2019 ONCJ 100

DATE: 2019 02 25

COURT FILE No.: Toronto, College Park 17-75004567

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GIANCARLO FRANCINELLI

Before Justice J.W. Bovard

Heard on September 27, 2018

Reasons for Ruling released on February 25, 2019 (by email)

Mr. S. Doyle.......................................................................................... counsel for the Crown

Mr. E. Battigaglia................................. counsel for the defendant Giancarlo Francinelli

Bovard J.:

[1] These are the court’s reasons for its disposition of Mr. Francinelli’s application for costs against the Crown.

[2] The defence asks for an order costs pursuant to s. 24 (1) of the Charter, as a result of a breach of the Mr. Francinelli’s rights under s. 7 of the Charter. The alleged breach is lack of timely disclosure by the Crown of a witness. The late disclosure caused the adjournment of the trial. The defence contends that the costs incurred by Mr. Francinelli “were a direct result of the Crown’s blatant breach of its Section 7 (Charter) disclosure obligations”.[^1]

[3] In the application, the defence asks for costs of “$5,650, HST inclusive, Which are Counsel Fees incurred from the preparation of the Adjournment Application before Borenstein J. on August 15th, as well as further Trial preparation, and Court time, for the September 26th and 27th Trial dates.”[^2] In submissions on September 27, 2018, the defence amended its application orally to the amount of $5,000.

Introduction

[4] On September 23, 2017, the police charged Mr. Francinelli with four charges of assault and one of uttering a death threat. The charges arose out of incidents that occurred between December 1, 2014 and April 1, 2017. Mr. Francinelli denied the allegations.

[5] The complainant, Ms. Nicole Johnson, and Mr. Francinelli were in a romantic relationship for four years. It was a turbulent relationship. They fought often and heatedly about infidelity on both of their parts.

[6] After the trial, I released my judgment on February 22, 2019. I found Mr. Francinelli guilty of one count of assault. I dismissed all of the other charges. I adjourned sentencing on consent to February 27, 2019, so that counsel could read my written reasons and prepare their submissions to sentence. I told counsel that in the meantime I would render my ruling on costs.

The costs application

[7] According to the application filed and all of its contents[^3], the alleged breach of Mr. Francinelli’s rights under s. 7 of the Charter is the late disclosure by the Crown of a witness, Ms. Kadyschuk, who entered Ms. Johnson’s apartment immediately after one of the alleged assaults.

[8] Ms. Kadyschuk observed the scene and Ms. Johnson’s demeanour immediately after the alleged assault. The defence argued that her evidence was important in that it potentially corroborated Ms. Johnson’s evidence, especially regarding her demeanour and injuries.

[9] The parties held a Crown pre-trial on November 21, 2017. On or about January 12, 2018, they set a trial date of August 14, 2018, for 3/4 of a day.[^4] Since the matter was so short there was no requirement for a judicial pre-trial. Up to this point, there was no disclosure of Ms. Kadyschuk’s evidence because the Crown did not know about it.

[10] The defence alleged that the Crown knew about Ms. Kadyschuk since March 27, 2018.[^5] The Crown filed an affidavit from Ms. Earlene Marry, office manager of the Ministry of the Attorney General at College Park court house. Ms. Marry disputes this date. As I will explain below, the disclosure was an email sent to the police on March 27, 2018. But Ms. Marry states in paragraph 6 that it was not until April 25, 2018, that the Crown’s office received Ms. Kadyschuk’s email from the police via their electronic disclosure system (SCOPE).

[11] Unfortunately, as a result of an inadvertent oversight the trial Crown was not informed of the arrival of Ms. Kadyschuk’s evidence.

[12] Ms. Marry explains the process of disclosure at College Park. More importantly, she explains what happened in the case at bar.

[13] Ms. Marry states that after the Crown made initial disclosure, the police sent the Crown Ms. Kadyschuk’s disclosure on April 25, 2018. This was done through the Crown’s electronic disclosure system (SCOPE). The process requires that the new disclosure be added to a Case Management Co-coordinator’s (CMC) electronic workbench. The CMC is responsible for looking at the disclosure and notifying the Crown that is assigned to the case that additional disclosure has come in.

[14] In the case at bar, the CMC inadvertently did not notice the new disclosure. Consequently, the trial Crown was not notified of it.

[15] At around 4:00 p.m. on August 13, 2018, the trial Crown told the CMC that he had just seen a new witness statement on SCOPE. He asked if the defence had been notified of this disclosure. The CMC told him that the defence had not been notified.

[16] The Crown advised the defence of the new disclosure through an email that day at 5:20 p.m. He sent him the new disclosure, which consisted of a two-page email that Ms. Kadyschuk sent to Officer Yiannakakos on March 27, 2018. Attached to the email were four pages of screen shots of text messages between Ms. Kadyschuk and Ms. L.E., who had previously had a romantic relationship with Mr. Francinelli.

[17] The email consisted of her statement regarding Ms. Johnson and Mr. Francinelli’s relationship in general, and in particular her observations of Ms. Johnson’s apartment and of her demeanour immediately after one of the alleged assaults. The attached text messages between Ms. Kadyschuk and Ms. L.E. dealt with Mr. Francinelli’s behaviour with Ms. Johnson and with Ms. L.E.

[18] The defence maintained that had it not been for him asking the Crown on August 12, 2018, about a possible resolution of the matter, considering that there was no corroborative evidence of Ms. Johnson’s allegations, the Crown would not have discovered Ms. Kadyschuk and her statement.

[19] The Crown agrees that the defence sent him an email asking about a possible resolution of the matter, but he disputes the defence’s assertion that had it not been for the defence asking about resolution, Ms. Kadyschuk’s statement would not have come to light. He explained that he discovered the statement in the midst of his preparation for trial two days before the trial date.

[20] He appears to be saying that the defence’s email and his discovery of Ms. Kadyschuk’s statement occurred very close to each other, but that he found the statement before he received the defence’s email. In any case, once he found the statement he immediately sent it to the defence.

[21] Ms. Marry explained in detail how the trial Crown became aware of Ms. Kadyschuk’s evidence. She is an experienced office manager who provided a detailed explanation of the procedure for disclosure at College Park. Her evidence was not impugned in any way. I accept Ms. Marry’s evidence.

[22] The matter came before Borenstein J. for trial on Wednesday, August 15, 2018. The defence brought an application for an adjournment based on the late disclosure. The Crown opposed it.

[23] The defence pointed out to Borenstein J. that it also did not receive the officer’s notes who spoke to Ms. Kadyschuk. However, this is not included in the application for costs. Therefore, I infer that the defence is not relying on it for the purpose of its costs application. At that time the Crown could not give Borenstein J. a reason why the disclosure was not made earlier.

[24] After hearing from the defence and the Crown, Borenstein J. found that the disclosure was quite significant. Consequently, it affected the way that defence would have to prepare its case in order to make full answer and defence.

[25] Furthermore, the late disclosure would also affect the defence’s cross-examination of Ms. Johnson. Consequently, the problem of the late disclosure could not be addressed by starting the trial with Ms. Johnson’s evidence and then adjourning for Ms. Kadyschuk’s evidence. Therefore, he granted the defence’s request for an adjournment of the trial as a result of the late disclosure.

[26] Defence counsel’s bill of costs to Mr. Francinelli is an exhibit. Also an exhibit is a copy of a cheque, dated September 7, 2018, from Mr. Francinelli to defence counsel in the amount of $5,000.

[27] That was all of the evidence on the application.

Analysis

Jurisdiction to order costs

[28] In R. v. 974649 Ontario Inc.[^6] the court held that a Justice of the Peace presiding at a trial under the Provincial Offences Act had the jurisdiction to order costs pursuant to a breach of the defendant’s rights under the Charter as a result of a failure to make disclosure.

[29] The Crown did not dispute the court’s jurisdiction to order costs in the case at bar. I find that it is logical that the reasoning in R. v. 974649 applies to a criminal trial court of the Ontario Court of Justice.[^7]

[30] See also, the endorsement in R. v. Culotta[^8], an application for certiorari where Karakatsanis J. (as she then was) found that “a Provincial Court Judge has jurisdiction to order costs under s. 24 (1) of the Charter if there is a breach of a Charter right”. In Culotta the Crown failed “to disclose important evidence on two trial dates”.

[31] Karakatsanis J. found further that, “costs awards to discipline untimely disclosure have a long history as a traditional criminal law remedy and are integrally connected to the function of the provincial Courts”.[^9] However, the judge does not have jurisdiction to grant costs for an adjournment.[^10]

[32] Other than for the jurisdictional point, I find that Culotta is distinguishable from the case at bar. The issue in Culotta was whether the judge granted costs as a condition of an adjournment, or as a remedy for a Charter breach. In Culotta, the Crown failed to make important disclosure that it “was on clear notice” to provide forthwith before the continuation date of the trial.[^11] In addition, the Crown failed to provide “timely disclosure on two different trial dates”.[^12]

The test for awarding costs

[33] In R. v. Leduc[^13] the court reviewed the jurisprudence dealing with awarding costs against the Crown. The court observed that the Supreme Court and provincial appellate courts,

have stopped short of awarding costs against the Crown for an innocent or inadvertent breach of its obligation to disclose. Instead, the jurisprudence to date has restricted costs awards against the Crown to "circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution.

[34] In 974649 Ontario Inc. McLachlin C.J.C. stated that the Crown is not to be held to a standard of perfection.[^14]

[35] Costs awards “will not flow from every failure to disclose in a timely fashion ... the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution”.[^15]

[36] McLachlin C.J.C. stated further that “although such costs awards have a compensatory element, they are "integrally connected to the court's control of its trial process, and intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure".[^16] (emphasis added)

[37] In R. v. Singh,[^17] the court stated:

inadvertent error is not enough to justify an award of costs for breach of the disclosure obligation and costs awards for such breaches will not be "routinely ordered in favour of accused persons who establish Charter violations": Ciarniello, at para. 36. A costs award against the Crown will not be an "appropriate and just remedy" under s. 24(1) of the Charter absent a finding that the Crown's conduct demonstrated a "marked and unacceptable departure from the reasonable standards expected of the prosecution", or something that is "rare" or "unique" that "must at least result in something akin to an extreme hardship on the defendant": Ciarniello, at paras 31-36; see also Tiffin, at paras. 93-101.

Ruling

[38] In the case at bar I find that the late disclosure of Ms. Kadyschuk’s evidence was due to an inadvertent error on the part of the administrative staff in the Crown’s office. As soon as the trial Crown discovered the error he notified the defence and provided the disclosure. The disclosure was brief. It consisted of a two-page email with four pages of screen shots of text messages.

[39] In these circumstances, I find that the defence did not establish on a balance of probabilities that the Crown breached Mr. Francinelli’s rights under s. 7 of the Charter.

[40] Even if the defence had established such a breach, the Crown’s actions do not meet the tests described above for an order of costs to be appropriate.

[41] Furthermore, it appears from paragraph 5 of the defence application that he is asking for costs for “Counsel Fees incurred from the preparation of the Adjournment Application before Borenstein J. on August 15th, as well as further Trial preparation, and Court time, of the September 26th and 27th Trial dates.” Culotta makes it clear that it is not appropriate to award costs for adjournments. Therefore, that part of the application fails for that additional reason.

[42] For all of these reasons the defence application for costs is dismissed.

Released: February 25, 2019

Signed: Justice J.W. Bovard

[^1]: Application, para. 5 [^2]: Ibid. [^3]: Notice of Application; Transcript of August 15, 2018 adjournment proceedings on the first trial date; and a copy of R. v. Culotta [2007] O.J. No. 3427. The defence’s bill of costs was submitted separately but I consider it as included in the application. This material is exhibit A. [^4]: Transcript, August 15, 2018, 2018, page 5, adjournment proceedings on the first trial date; affidavit of Ms. Earlene Marry, office manager of the Ministry of the Attorney General at College Park court house (exhibit B) [^5]: Transcript, August 15, 2018, 2018, page 5, adjournment proceedings on the first trial date [^6]: 2001 SCC 81, paras. 93 - 97 [^7]: Ibid., paras. 80, 81 [^8]: [2007] O.J. No. 3427, para. 1 [^9]: Ibid., para. 12 [^10]: Ibid., para 1 [^11]: Para. 8 [^12]: Para. 12 [^13]: 2003 CanLII 52161 (ON CA), [2003] O.J. No. 2974, para. 158 - 160 [^14]: Para. 87 [^15]: Ibid. [^16]: Para. 81 [^17]: 2016 ONCA 108, para. 38