Court Information
Ontario Court of Justice
Date: September 11, 2019
Court File No.: Guelph Provincial Offences Court Information Number 181523
Between
Her Majesty the Queen
— AND —
Millbank Fur Farm Limited
Before
Justice of the Peace L. Phillipps
Heard on: August 30, 2019
Reasons for Judgment released on: September 11, 2019
Counsel
Marilyn Dolby — counsel for the Crown
Kurtis R. Andrews — counsel for the applicant Millbank Fur Farm Limited
Decision
Justice of the Peace L. Phillipps:
Application for Stay of Proceedings
[1] The Court heard the application for a stay of proceedings under sections 7 and 24(1) of the Charter for abuse of process. The application is based on a refusal to provide first-party disclosure.
[2] The applicant seeks a stay of proceedings or, in the alternative, an order requiring the OSPCA to provide the requested disclosure to no later than 60 days before trial under risk of a stay of proceedings being automatically imposed for abuse of process.
Charter Section 7 — Corporate Defendant
[3] Millbank Fur Farm Limited is a corporation and not a human being. A corporation cannot be deprived of life, liberty or security of the person. Consequently, the rights under s. 7 of the Charter can only be claimed by human beings: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (S.C.C.); Thompson Newspapers Ltd. v. Canada (1990), 54 C.C.C. (3d) 417 (S.C.C.); R. v. Wholesale Travel Inc. (1991), 67 C.C.C. (3d) 193 (S.C.C.). Therefore, the application pursuant to s. 7 of the Charter must fail.
Jurisdiction Under Common Law and Provincial Offence Act
[4] The obligation on the Crown to make first party disclosure is supported by s. 7 and 11(d) of the Charter, but does not depend on the Charter. Stinchcombe rested largely on the common law right to make full answer and defence, which is provided for in POA, s. 46(2): York (Regional Municipality) v. McGuigan, 2018 ONCA 1062. I therefore retain jurisdiction to address the application for disclosure under the common law and s. 46(2) P.O.A. and in doing so I apply many of the same tests, principles and standards as enunciated in the various Charter cases on point.
Background and Context
[5] To put the requests in context, Ms. Katherine Logan, a paid member of the Last Chance for Animals group, sought and gained employment at Millbank Fur Farm Limited (Millbank) at which time she conducted an investigation that led to charges under provincial legislation related to animal cruelty. It appears from the materials provided that Ms. Logan's evidence forms the basis of the Crown's case.
[6] I am told that Ms. Logan similarly conducted an investigation at a business called Crimson Lane Farms several years ago.
[7] Somewhat uniquely, the OSPCA is a charitable organization that has powers conferred upon it to inspect, investigate and enforce provincial legislation. Recently, the OSPCA essentially ceased their law enforcement function following a decision in Boagerts v. Ontario (Attorney General), (January 2) 2019 ONSC 41, Minnema, J.
[8] While not a police service, the parties jointly submit that the OSPCA is a state authority.
[9] It is submitted that provincial freedom of information and protection of privacy legislation does not apply to the OSPCA and is therefore not a potential method for obtaining documents sought by the Applicant.
Disclosure Requests
The Applicant seeks the following:
[10] All investigative files of the OSPCA, or information otherwise collected by the OSPCA, related to Katherine Logan and any complaints or findings by the OSPCA against her for animal neglect and / or cruelty including the OSPCA's investigative file on Katherine Logan as it relates to a complaint against her for animal cruelty and / or neglect at Millbank's farm during the charge period of this matter, and also the OSPCA's findings related to animal cruelty and / or neglect by Katherine Logan at Crimson Lane Farms between 2015 and 2016. The request includes any other similar information that the OSPCA has about Katherine Logan that may have taken place elsewhere.
[11] All OSPCA internal correspondence related to any decision to charge or not charge Katherine Logan for animal cruelty and / or neglect at any time, including as it relates to Millbank and Crimson Lane Farms including all correspondence involving OSPCA Chief Inspector Connie Mallory and CEO Kate Macdonald, as well as involving any other employees, executive and / or board members of the OSPCA.
[12] All past correspondence between Katherine Logan (or her employer, LCA) and the OSPCA regarding any "undercover investigation" conducted by Katherine Logan and / or other LCA personnel.
[13] All past and current OSPCA correspondence including internal and external correspondence, documents, policies or memos, related to fur farming, and anything related to the OSPCA's opposition to fur farming, or discussion or development of the OSPCA's position on fur farming, both past and present.
[14] The Applicant withdrew their request for all past or current OSPCA Position Statements, or similar documents, related to fur farming, or that the OSPCA state its current and past position on fur farming and / or the fur industry in general. The document sought was received and viva voce evidence from the former Chief Inspector was presented to the Court upon hearing the Charter argument.
Procedural History
[15] The Applicant was provided with a disclosure package early in these proceedings. Following a review of the package, the Applicant requested the missing disclosure by letter on September 19, 2018. A total of 12 items were identified and requested at that time.
[16] In response to the request, several items were provided. The Applicant advised the Court that the OSPCA refused to provide some additional materials. These items form the basis for this application.
Legal Framework
Abuse of Process
[17] Abuse of process occurs where the conduct of the prosecution contravenes the community's sense of decency and fair play: R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.).
[18] Conduct that amounts to an abuse of process falls into two categories:
(1) Conduct that violates a substantive Charter right such as the right to be tried within a reasonable time or the right to a fair trial.
(2) The residual ground or conduct that does not violate a Charter right or impact the fairness of the trial but connotes unfairness and vexatious conduct of such a degree that it contravenes a fair trial.
[19] Cases where a stay of proceedings for abuse of process will be warranted generally fall into two categories:
(1) Where state conduct compromises the fairness of an accused's trial; and
(2) Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16 (S.C.C.).
[20] The same test applies to both categories:
Prejudice to the right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through conduct of trial or by its outcome
There is no alternative remedy capable of redressing the prejudice, and
Where there remains uncertainty as to whether a stay is warranted through steps 1 and 2, the court is required to balance the interests in favour of granting stay against the interest in having final decision on merits. R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16 (S.C.C.).
[21] While the framework is the same for both categories, the test may and often will play out differently depending on whether the main or residual category is invoked.
Subsection 24(1) of the Charter
[22] Although the application for a s. 24 remedy has been denied due to the inapplicability of s. 7 to the corporate defendant, the s. 24 principles are applicable to a just result. Subsection 24(1) of the Charter provides that a person alleging a Charter breach may apply "to obtain such remedy as the court considers appropriate and just in the circumstances." Subsection 24(2) of the Charter authorizes a court to exclude evidence obtained by a Charter infringement "if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." The remedial sections of the Charter must be given the same purposive interpretation as the substantive provisions. This means they must be interpreted in a way that provides "a full, effective and meaningful remedy for Charter violations": R. v. 974649 Ontario Inc. (Dunedin) (2001), 2001 SCC 81, 159 C.C.C. (3d) 321 (S.C.C.).
[23] The Charter applies to defendants charged with regulatory offences as well as those charged with criminal offences: R. v. Wigglesworth (1987), 37 C.C.C. (3d) 37 (S.C.C.).
Remedies Under Section 24(1)
[24] A remedy under s. 24(1) must be one that the court considers appropriate and just in the circumstances. The Supreme Court of Canada has held the broad discretion this phrase confers means it is impossible to come up with a formula that will be applicable in all cases: R. v. Mills (1986), 26 C.C.C. (3d) 481 (S.C.C.).
[25] Factors a court may consider to determine if a remedy is appropriate and just include:
the remedy must meaningfully vindicate the rights and freedoms of the claimants
the remedy invokes the functions and powers of the court
after ensuring the rights of the claimant are fully vindicated, is it fair to the party against whom it is ordered. Doucet-Boudreau v. Nova Scotia, 2003 SCC 62, [2003] 3 S.C.R. 3 (S.C.C.).
Stay of Proceedings
[26] A stay of proceedings may be granted as a remedy under s. 24(1) of the Charter.
[27] A stay is a drastic remedy and should only be granted in the clearest of cases.
[28] The Supreme Court of Canada has repeatedly held that a stay of proceedings is a last resort remedy, to be entered only when all other remedies are in appropriate: R. v. Taillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.).
[29] A stay of proceedings may be an appropriate remedy where:
The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome and
No other remedy is reasonably capable of removing that prejudice. R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.).
First Party Disclosure
[30] In R. v. Gubbins, 2018 SCC 44, at paras. 18-24 and 32-33, Rowe J. summarized the legal framework governing first party disclosure:
18 In R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.), this Court held that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure. The Crown's duty to disclose corresponds to the accused's constitutional right to the disclosure of all material which meets the Stinchcombe standard: R. v. McQuaid, [1998] 1 S.C.R. 244 (S.C.C.), at para 22. The purpose of disclosure is to protect the accused's Charter right to full answer and defence, which will be impaired where there is a "reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence": ibid.
19 The Crown's duty to disclose is triggered upon request and does not require an application to court: Stinchcombe, at pp. 342-43. The duty is ongoing; new information must be disclosed when it is received: ibid. The Crown's duty to disclose is not absolute. The Crown considers relevance and the rules of privilege. Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review; in such an instance, the burden is on the Crown to justify its refusal to disclose by showing that the information is "clearly irrelevant" or privileged: Stinchcombe, at pp. 339-40.
20 The "Crown" for the purposes of Stinchcombe does not refer to all Crown entities, but only to the prosecuting Crown: McNeil, at para. 22; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 (S.C.C.), at para. 11. All other Crown entities, including police, are third parties for the purposes of disclosure. They are not subject to the Stinchcome regime. This is because the law cannot impose an obligation on the Crown to disclose material that it does not have or cannot obtain: McNeil, at para. 22.
21 In McNeil, this Court clarified that "the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown": para. 24. The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: McNeil, at para. 49. As well, the police have a corresponding duty to disclose "all material pertaining to its investigation of the accused": McNeil, at paras. 23 and 52. Such material is often referred to as "the fruits of the investigation": McNeil, at paras. 14, 22-23. As well, the police may be required to hand over information beyond the fruits of the investigation where such information is "obviously relevant to the accused's case": McNeil, at para. 59.
22 The "fruits of the investigation" refers to the police's investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/ Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.
In its normal, natural everyday sense, the phrase "fruits of the investigation" posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused.
(R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161 (Ont. C.A.), at paras. 92-93)
23 In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is "obviously relevant" to the accused's case. The phrase "obviously relevant" should not be taken as indicating a new standard or degree of relevance: Jackson, at para. 125, per Watt. J.A. Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the Crown's case, raise a defence, or otherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown.
24 These qualifiers are significant, as they contemplate that not all police records will be subject to first party disclosure. … From the foregoing, it is evident that there is an important role for third party disclosure where the records are neither part of the investigative file nor obviously relevant, therefore not part of first party disclosure: McNeil, at para. 60.
32 How should the courts determine whether a record in the possession or control of a state entity is subject to first party or third party disclosure? Relevance alone is not determinative. A record may be relevant to the case against an accused and still be a third party record.
33 Based on the previous discussion of disclosure regimes, to determine which regime is applicable, one should consider: (1) Is the information that is sought in the possession or control of the prosecuting Crown? and (2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the "fruits of the investigation" or "obviously relevant". An affirmative answer to either of these questions will call for the application of the first party disclosure regime. Otherwise, the third party disclosure regime applies...
Court's Decision
[31] The investigative files of the OSPCA relating to Katherine Logan at Millbank Fur Farm are not in the possession of the Crown beyond what has already been disclosed. It is information that the OSPCA ought to have supplied to the prosecuting Crown as it is part of the fruits of the investigation. This would include all officer notes which the OSPCA, through the Crown, can not definitively say have been disclosed as of the hearing on this application.
[32] Information otherwise collected by the OSPCA, related to Katherine Logan and any complaints or findings by the OSPCA against her for animal neglect and / or cruelty, and also the OSPCA's findings related to animal cruelty and / or neglect by Katherine Logan at Crimson Lane Farms between 2015 and 2016 or at any time elsewhere, is not in the possession of the Crown. It is not information which ought to have been supplied to the prosecuting Crown as it is neither fruits of the investigation nor obviously relevant.
[33] The request for all OSPCA internal correspondence related to any decision to charge or not charge Katherine Logan for animal cruelty and / or neglect at any time, including as it relates to Millbank and Crimson Lane Farms including all correspondence involving OSPCA Chief Inspector Connie Mallory and CEO Kate Macdonald, as well as involving any other employees, executive and / or board members of the OSPCA, is not in possession of the Crown, beyond what has been disclosed. It is not information which ought to have been supplied to the prosecuting Crown as it is neither fruits of the investigation nor obviously relevant.
[34] The request for all past correspondence between Katherine Logan (or her employer, LCA) and the OSPCA regarding any "undercover investigation" conducted by Katherine Logan and / or other LCA personnel. This information is not in possession of the Crown. It is not information which ought to have been supplied to the prosecuting Crown as it is neither fruits of the investigation nor obviously relevant.
[35] All past and current OSPCA correspondence including internal and external correspondence, documents, policies or memos, related to fur farming, and anything related to the OSPCA's opposition to fur farming, or discussion or development of the OSPCA's position on fur farming, both past and present. This information is not in possession of the Crown, beyond what has been disclosed. It is not information which ought to have been supplied to the prosecuting Crown as it is neither fruits of the investigation nor obviously relevant.
[36] An alternative to the requested stay of proceedings is available.
[37] I also decline to order that a stay of proceedings automatically be imposed in the event of non-compliance.
Order
[38] Pursuant to s. 46(2) of the Provincial Offence Act and the common law jurisdiction of this court, I hereby order that:
[39] The OSPCA, through the Crown, shall forthwith, but not later than 30 days prior to the first date for trial, disclose to the Applicant:
(1) All of the investigative files of the OSPCA as they relate to Katherine Logan, limited to those related to the Millbank Fur Farm Limited investigation.
(2) All OSPCA agent and investigator notes involving the current charges against Millbank Fur Farm Limited, including but not limited to, those portions involving Katherine Logan.
Released: September 11, 2019
Original signed by L. Phillipps
Signed: Justice of the Peace L. Phillipps