Court File and Parties

Court: Ontario Court of Justice

Date: 2019-05-02

Court File No.: 0459—Sault Ste Marie

Between:

Her Majesty the Queen in Right of Ontario (Ministry of Labour)

— AND —

Algoma Tubes Inc.

Before: Justice of the Peace J.G. McMahon

Disclosure Application Heard on: January 14, 2019

Application Denied on: January 14, 2019

Written Reasons Released on: May 2, 2019

Counsel

J. Dhar — Counsel for the Ministry of Labour

P. Cassan — Counsel for the Defendant Algoma Tubes Inc.

Decision

JUSTICE OF THE PEACE J.G. McMAHON:

[1]

On January 14, 2019, the Defence made an oral application seeking a stay of proceedings or, in the alternative, a disclosure order on account of the Prosecution's alleged failure to disclose relevant information. The Prosecution contested the application.

[2]

I denied the application and committed to providing written reasons. The blended trial and Charter voir dire then continued. These are the promised reasons.

I. BACKGROUND

[3]

The Defendant, Algoma Tubes Inc., operates an industrial facility in Sault Ste Marie. An employee was injured on November 10, 2016. The Defendant was charged that—as an employer—it failed to ensure that prescribed measures and procedures were carried out in the workplace, contrary to s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, Chapter 0.1. The conduct at issue is an alleged failure to guard a machine as required by the regulations governing industrial establishments—notably R.R.O. 1990, Reg. 851, s. 24. The alleged offence date is November 10, 2016. The Information was received on August 1, 2017.

[4]

The Defence's disclosure application was not anticipated.

[5]

Monday, January 14, 2019 was the first day of a then scheduled four-day blended trial and Charter voir dire. Pre-trial applications were scheduled for September 17 and 18, 2018—notably the Defence's Charter application. However, on September 17, following some in-court discussions and exchanges, the understanding was that the Defence would file a revised application, the Prosecution would file responding materials and a blended four-day Charter application and trial would begin on January 14. It was also understood that there were no outstanding disclosure issues except those that could be associated to the Charter application. The disclosure issue raised on January 14 was separate and distinct from the content of the Charter application.

[6]

To complete the background, it should be noted that the initial dates for a Charter application were June 18 and 19, 2018. The matter was adjourned and July 27, 2018 was set for a disclosure motion. The Defence withdrew the motion before the hearing date.

[7]

Defence Counsel advised the Court that—in final trial preparation—he came to recognize that certain materials not disclosed by the Prosecution would be relevant to the Defence. The Prosecution was advised by way of disclosure-related correspondence. The first was received on January 9, 2019. The parties did not resolve the issue. The Defence made its oral application. It did not file an application in accordance with the procedural requirements of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings: R.R.O. 1990, Reg. 200, s. 7. It did, however, provide materials on the day of the application. The Prosecution was aware that the Defence would likely make application.

The Nature of the Materials Sought

[8]

As noted above, the essence of the allegation is that the Defendant failed to properly "guard" a machine on November 10, 2016. In basic terms—a "guard" protects workers from the moving parts of a machine or equipment.

[9]

The information sought dates back to the period of 2007 to 2009—seven to nine years before the alleged offence. Between 2007 and 2009, Ministry of Labour officials engaged in a "guarding project" at the Defendant's Sault Ste Marie facility. The goal was regulatory compliance and the project involved multiple machines and equipment throughout the facility. As a result, there were multiple contacts, visits and exchanges of information—over the duration of the project—between ministry officials and the Defendant corporation.

[10]

The Defence conceded that—as a result of the project—ministry officials issued a number of orders. It added that the Defendant complied with the orders, but that some extensions of time were needed to achieve compliance.

[11]

The Defence was not, however, seeking all documents and materials related to the "guarding project". The Defendant has some materials as a result of its participation in the process. The request was narrowed to: ministry documentation in relation to the analysis and approval of "guarding" issues for the period 2007 and 2009, including the inspection notes of M. Lacroix and D. Jones. The two named individuals were Ministry of Labour inspectors at the relevant time. They are now retired.

[12]

Near the end of the hearing, the Defence further narrowed its demand to records, notes and photographs associated to the "west threader", which would be the machine/equipment at issue at trial.

The Position of the Parties

[13]

The Defence position can be summarized as follows. The Prosecution had an obligation to disclose the requested information. The information was relevant to the proceedings because the trial was about the "guarding" of a machine and the information requested was related to a "guarding project". It emphasized that the information was central to making full answer and defence, including presenting defences of due diligence, officially induced error and reliance on a regulator. It also noted that abuse of process would be at issue.

[14]

The Prosecution position can be summarized as follows. The Court should not entertain the application for a number of reasons, including that: it was made too late; the Defence failed to diligently pursue the information; the history of the matter, including delays; the low probability of the application's success; and the understanding that there were no outstanding disclosure issues (except that associated with the Charter application) heading into the first day of the blended trial and voir dire.

[15]

On the merits of the application, the Prosecution took the view that there was no obligation to disclose the information because it was dated information that was not relevant to the present proceedings. It characterized the application as a fishing expedition. Nonetheless, the Prosecution adopted the view that—had the Defence made an earlier request—it would have acted in good faith and looked to see what information could be provided. The Prosecution advised the Court: that it did not have the information sought; that information of the nature requested would exist within the Ministry of Labour, but that it could not confirm with precision what would be there; and that it would take time for ministry officials to locate the dated information.

II. THE LAW

Assessing the Application on Its Merits

[16]

A court has the authority to control its proceedings and manage the trial process. It follows that there is judicial discretion to decline to hear a late application in appropriate circumstances: R. v. Kutynec, [1992] O.J. No. 347 (ON CA)

[17]

In our adversarial system, Prosecution and Defence are expected to provide sufficient notice of applications and motions as well as, at a minimum, comply with the rules of the court with respect to notices, service and filings with the court. The Defence did not comply with those rules because the issue would have arisen only a few days before trial. The case law also confirms that the Defence must request and pursue disclosure with diligence. Michelle Fuerst and Mary A. Sanderson "General Editors", Ontario Courtroom Procedure, 4th ed. (Toronto: LexisNexis Canada Inc., 2016), at page 404—summarize the duty as follows:

The courts, however, have also imposed an obligation on counsel to pursue disclosure materials diligently. It is unacceptable to wait until the trial to raise the lack of disclosure of specific materials for the first time if the existence of these materials should have been known or surmised by counsel earlier. This is a very important part of Charter litigation.

[18]

In the present case, there were legitimate grounds on which to argue that the Defence was not diligent with respect to pursuing the information at issue at a much earlier point in the process. After all, the Defendant corporation was involved in the 2007-2009 "guarding project" and it was fair to argue that it should have known about the potential relevance of the information sought.

[19]

Nonetheless, in my view, there should be some reluctance to dismiss an allegation of an infringement of the right to make full answer and defence. The trial is about guarding with respect to a machine. The information, at issue, was said to be in relation to a "guarding project" at the Defendant's facility. Experience teaches us that, sometimes, information originally thought to be neutral or irrelevant can become relevant as the trial date approaches or even during trial.

[20]

Upon consideration of the circumstances of the case and submissions—I decided that the application should be heard and determined on its merits and that this could be accomplished on the basis of counsel submissions and submitted materials: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 341.

The Law Governing Disclosure

[21]

The right to make full answer and defence is a broad concept that includes the right to disclosure. The right to make full answer and defence was first grounded in the common law. It is now a statutory right with respect to provincial offences: s. 46(2) Provincial Offences Act, R.S.O. 1990, c. P.33 (POA). It is also recognized as a principle of fundamental justice protected by ss. 7 and 11(d) of the Charter.

[22]

In York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, the Court of Appeal, at para. 95, confirmed that prosecution disclosure obligations apply to provincial offences and that a defendant may rely on s. 46(2) of the POA rather than the Charter to compel disclosure:

It does not matter whether the defendant's life, liberty or security of the person is at risk. The obligation on the Crown to make first party disclosure is supported by ss. 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).

[23]

The Defendant corporation could not, however, rely on s. 7 of the Charter because only human beings can enjoy the right to life, liberty and security of the person: R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. The Defence therefore relied on s. 46(2) of the POA.

[24]

The legal principles governing disclosure continue to evolve. 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. For the reasons that follow, the maintenance records are subject to third party disclosure. [Emphasis added]

[25]

The legal framework confirmed by the Supreme Court applies whether the disclosure issue arises out of a Charter application or an application grounded in s. 46(2) of the POA. In McGuigan, the Ontario Court of Appeal applied the framework to a non-Charter disclosure case with respect to a provincial traffic (speeding) offence. In my view, however, there are important differences between Charter-based and non-Charter disclosure applications in terms of such things as notice requirements, procedure, evidentiary burdens and available remedies. For example, in a Charter application, the defendant must first establish a Charter breach before obtaining a remedy. As already discussed—the present application was not Charter-based. It was grounded in s. 46(2) of the POA.

Application of the Legal Framework to the Present Case

[26]

Is the information sought in the possession or control of the Prosecution?

The information sought would exist, but it was not in the possession of the Prosecution. It was in the possession of the Ministry of Labour.

[27]

Did the Ministry of Labour have an obligation to provide the information sought to the Prosecution?

The Ministry of Labour's obligation to provide information to the Prosecution is limited to the "fruits of the investigation" and information that is "obviously relevant" to the Defendant's case. The Prosecution, however, had to justify non-disclosure because the information would exist: R. v. Chaplin, at para. 25; Gubbins, at para. 19.

[28]

The Information sought did not meet the criteria of "fruits of the investigation". The information was not "generated or acquired during or as a result of the specific investigation into the charges against the accused": Gubbins, at para. 22. The information was gathered or generated as a result of a facility-wide "guarding project" that took place seven to nine years before the date of the alleged offence, the subsequent investigation and the resulting charge.

[29]

In my view, the information sought did not meet the threshold of "obviously relevant" to the Defendant's case, as defined by the governing case law. In assessing the issue of relevance, I was cognizant that Gubbins, at para. 23, confirmed: that the words "obviously relevant" do not convey a new standard or degree of relevance; and that relevance is to be considered in the context of a defendant's ability to meet the prosecution's case, raise a defence or make decisions with respect to the conduct of the defence.

[30]

The information sought is dated. It would describe the state of affairs in 2007 to 2009 with respect to "guarding" at the Defendant's facility and the "west threader" in particular. As noted above, the alleged offence date is November 10, 2016.

[31]

Seven to nine years between events is a significant lapse of time. Human experience and logic informs us that people, circumstances and things, including machinery change in time. A prudent approach was required in assessing the Defence's position that information from 2007 to 2009 was relevant to defences for an alleged 2016 offence. A rush to classify the information as irrelevant had to be avoided. Each case must be determined on its own facts and circumstances. There are and will be situations where dated information is relevant to a defence. The threshold of relevance with respect to disclosure is not a high one. In the present case, non-disclosure had to be justified by the Prosecution.

[32]

In this hearing there was more than human experience and logic to support a conclusion that the state of the "west threader" in 2016 was different as compared to its state in 2007, 2008 or 2009. Materials submitted by the Prosecution (i.e. Exhibit #1), notably the "Investigation Report" clearly indicates that the Defendant made modifications to the "west threader" after 2009 and before the alleged offence date in 2016. The report, at page 6, indicates that the "west threader" was equipped with an additional shroud cover in that period and suggests that the use of an overhead hood may no longer be an integral part of the threading process. The report, at page 11, shows that a plastic coolant curtain was removed from the "west threader" in the same time period. Defence Counsel acknowledged this last change, but argued it was not a "guarding" change. Whether the modification is classified as a "guarding" change or not, is a matter for trial. For the purposes of the disclosure application—the modifications to the "west threader" signal that the circumstances at the time of the offence (2016) were different than in the period 2007-2009. This erodes the relevance of the information sought by the Defence (for 2007-2009) in relation to the defences to the 2016 charge.

[33]

The Defendant's facility was not a static environment with respect to regulatory compliance activity after the completion of the "guarding project". The Defence materials, at Tab '17', show that ministry officials visited the Defendant's facility some 74 times between 2010 and 2016. The reasons and outcomes of those visits were not in evidence, but the quantity of visits illustrates that the process of maintaining regulatory compliance and interactions with ministry officials were ongoing, evolving and responding to new issues.

[34]

After considering the circumstances, materials and submissions, I concluded that the information sought was not "obviously relevant" to the Defendant's case. The information sought was too far removed in time and reflected a dated state of affairs with respect to the "west threader" that had changed and that was different at the time of the alleged offence.

III. CONCLUSION

[35]

The information sought was not in the possession or control of the Prosecution. The information sought was in the possession of the Ministry of Labour, but it was not part of the "fruits of the investigation" and it was not "obviously relevant" to the Defendant's case. The requested information was therefore not part of first party disclosure. The Prosecution and the Ministry of Labour had no resulting disclosure obligations. As a result, the application was denied and no remedy was available to the Defendant.

[36]

The blended trial and Charter voir dire will resume on May 6, 2019, as scheduled.

Released: May 2, 2019

Signed: Justice of the Peace J.G. McMahon