Court File and Parties

Ontario Court of Justice

Date: 2020-09-10

Court File No.: Halton Information # 18-2681/18-4054

Between:

Her Majesty the Queen

— and —

Robert Rak

Before: Justice Scott Latimer

Heard on: July 10, 2020

Reasons for Judgment released on: September 10, 2020

Counsel

Arish Khoorshed — counsel for the Crown

Owen Wigderson — counsel for Mr. Rak

Judgment

LATIMER J.:

[1] Introduction

[1] The applicant was charged by a police officer with driving a motor vehicle with a blood alcohol concentration in excess of the legal limit. His file was transferred to the court system, where an Assistant Crown Attorney reviewed it during her case management obligations. The Crown determined that the related charge of impaired driving was also available on the facts and should be proceeded upon. An email was sent to the police service, setting into motion the laying of this new charge.

[2] This application is brought because Mr. Rak challenges the legality of the process that led to him being charged with impaired driving. Specifically, it is alleged that the Crown directed the police to lay a criminal charge, and that such a direction violates police independence and the principles of fundamental justice in section 7 of the Charter. Further, it is submitted that the officer who ultimately swore the new information before a Justice of the Peace did not possess subjective grounds to believe that the impaired driving offence had been committed, and the formalization of the new information and related summons also violated s. 7 of the Charter. In these reasons, I will first review the evidentiary record before addressing the individual issues raised in the application.

I. The Evidentiary Record

[3] This hearing has been conducted on the exclusive basis of an agreed statement of facts. No viva voce testimony has been called. The agreed facts are not lengthy. They state that Mr. Rak was investigated by the police on July 22, 2018 and ultimately charged with 'Over 80'. That information was laid before a Justice of the Peace on July 26, 2018.

[4] Two months later, an Assistant Crown Attorney reviewed the Crown disclosure brief and sent an email to the "Crown Brief Review Group" of the Halton Regional Police Service. I am advised that this group "prepare[s] and supervises the preparation of briefs that are sent to the Crown's office". The Crown's email read:

Please prepare and put before the court a new/replacement information in this case – based on the civilian statements and the indicia of impairment observed at the scene, an impaired charge should have also been laid. Please prepare a replacement information.

[5] Approximately one month later, as a result of this email, a special constable attended at the judicial intake office and presented an information before a Justice of the Peace. This new information duplicated the existing 'Over 80' charge and added a new count of impaired driving.

[6] The transcript of the intake proceeding has been appended to the agreed statement of facts. The officer advised that he is presenting a new information against Mr. Rak. The Justice of the Peace had the original 'Over 80' information before him. The officer affirmed that the content of the new information is true to the best of his knowledge and belief and advised that he had been instructed to seek a summons returnable on the date the original information was returning to court.

[7] The Justice of the Peace responded that he could not issue a summons unless he heard "some particulars", in addition to the information previously received regarding the original 'Over 80' information. He asked for "anything about the impaired that I would need to hear".

[8] What follows is the officer's response in its entirety: "I've got here just that a citizen – acquired a statement from a citizen – police acquired a statement from a citizen who called in involving the vehicle and provided grounds for the offence of impaired driving of a motor vehicle. So, the police received evidence, a witness statement...", at this point, the Justice of the Peace indicated that he was satisfied with the information provided and process was issued.

[9] During the hearing before me, the Crown advised that it was not taking the 'Over 80' allegation to trial. It is to be withdrawn at the completion of these proceedings. This leaves the new impaired driving charge as the sole count for adjudication.

II. Positions of the Parties

[10] The applicant submits that charging decisions are the exclusive province of the police, and the Crown's conduct in this case intruded upon this area in a manner that violated principles of fundamental justice. As the applicant's s. 7 rights are engaged by a criminal prosecution, an information laid exclusively because of Crown direction is contrary to the principles of fundamental justice and therefore a s. 7 breach.

[11] It is further submitted that the swearing officer did not possess subjective grounds to believe that Mr. Rak had committed the impaired driving offence, but instead was essentially just doing as directed when he appeared before the Justice of the Peace. When pressed by the judicial officer to provide a prima facie case for the issuance of a summons, the record is insufficient to justify the Justice's ultimate decision to issue process. These are stand-alone s. 7 violations, it is submitted, that aggravate the overall violation and warrant a remedy under s. 24(1) of the Charter. In this regard, the applicant submits that quashing the information would be a "just and appropriate" remedy.

[12] The respondent acknowledges that the Crown cannot unilaterally direct the police to lay a charge, but challenges whether any such direction occurred here. The Crown's charge screening function justifies a dialogue between the Crown and police about what charges are viable. In the absence of undue pressure being applied, there is nothing improper – and much good to be gained – by Crown involvement in a charge screening process that leads to different or additional charges being laid.

[13] Regarding the issuance of the information, it is submitted that there is no institutional obligation to have an officer articulate his grounds on the record before the Justice of the Peace prior to having the information sworn. The Justice's role is ministerial, and he is obligated to swear or affirm a facially valid information. For process to be properly issued however, the Crown acknowledges that an inquiry into the presence of grounds must occur. The absence of such grounds can invalidate the eventual summons (or arrest warrant). A judicial act that affects the liberty interest of a citizen must, pursuant to s. 507 of the Criminal Code, be based on a showing of a prima facie case. The Crown respondent, somewhat faintly, argues that objective grounds exist on the intake court transcript, but more strenuously submits, in the alternative, that in the event such a basis is absent, the appropriate remedy would be to quash the summons only.

III. Law & Analysis

(1) What constitutes a principle of fundamental justice?

[14] Section 7 of the Charter reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[15] The Charter does not provide a list of what constitutes principles of fundamental justice; these principles are drawn from ongoing judicial experience and the legal system's common law history. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513, the Supreme Court of Canada wrote:

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s.7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves. [emphasis in original]

(2) Police independence and Crown objectivity

[16] Regarding the first issue in this case - the involvement of a Crown Attorney in the laying of an information - I would characterize the relevant principles engaged to be police independence and, relatedly, Crown objectivity. I have no difficulty concluding that both principles, upon which I will expand below, constitute principles of fundamental justice. The Supreme Court of Canada wrote in R. v. Regan, 2002 SCC 12, [2002], 1 S.C.R. 297, at pp. 336-7 that "Crown objectivity and the separation of the Crown from police functions are elements of the judicial process that must be safeguarded.... [and that the] separation of police and Crown roles is a well-established principle of our criminal justice system".

[17] In Regan, a main issue was Crown involvement in pre-charge witness interviews. The Court had access to expert testimony demonstrating that such interviews, while uncommon generally, were more likely to occur in certain provinces than others. The appellant asked the Court to draw a clear line of demarcation, prohibiting Crown involvement in any pre-charge evidence gathering other than the provision of legal advice. The Court declined such a bright-line approach, with the majority writing that the "... process is a fluid one. The expectation is that both the police and the Crown will act according to their distinct roles in the process, investigating allegations of criminal behaviour, and assessing the public interest in prosecuting, respectively. The exercise of these roles does not seem to be clearly or predictably altered by whether the formal act of the laying of the charges has occurred": Regan, at 345, 366; Smith v. Ontario, 2019 ONCA 651, at para. 71.

[18] Smith v. Ontario is a recent decision from our Court of Appeal examining the separate, but often interrelated, roles of the Crown and the police in the criminal justice process. Mr. Smith had been charged with murder. After his acquittal, he sued the justice system participants who had investigated and prosecuted him. The litigation process in the civil matter required consideration of the nature of the relationship between the Crown and the police during a criminal proceeding.

[19] Justice Tulloch, writing for the Court, conducts a considered review of a century of English and Canadian jurisprudence, as well as secondary sources such as Royal Commissions and academic articles. His reasons synthesize the surrounding authorities and have been of great assistance to me in preparing this judgment. In the circumstances, I intend to focus only on the aspects of Smith that are directly implicated in Mr. Rak's circumstances:

(1) The principle of police independence protects police decision-making in "core law enforcement functions". Tulloch J.A. described these functions as "conducting criminal investigations, laying charges, and making arrests": para. 53.

(2) There can be no doubt that police independence is critically important to the proper functioning of a criminal justice system in a free and democratic society. Political interference in core law enforcement decisions – such as who to investigate or charge – risks damage to the rule of law. "... if the government could direct the police who to investigate and who not to investigate, "Canada would move towards becoming a police state in which the Government could use the police to hurt its enemies and protect its friends": para. 62.

(3) The existence of a dialogue between the Crown and the police, regarding core law enforcement functions such as investigative techniques and the appropriateness of certain charges, does not infringe upon police independence. Indeed, their cooperation is "salutary for the administration of justice", so long as both sides respect the others' core jurisdiction: para. 65. The Crown may provide legal advice regarding a particular investigative technique, or the laying of certain charges, as long as it is clearly understood that this advice is not controlling or determinative, and that the final decision always rests with the police: para. 89.

(4) Once a charge is laid the matter is transferred to the court system, where the prosecutor's core functioning takes place. It is the responsibility of the Crown Attorney's Office to objectively review charges that have been laid, and the related disclosure, in aid of making a legal determination about whether those charges should be proceeded with, and in what manner. While these decisions are often made in consultation with police officers who were involved in the investigation, it is understood that the Crown prosecutor has the final say on what happens to a case once it reaches court: paras. 71-2, 76, 83-84.

[20] With this backdrop in place, I will now address the specific concern raised by the applicant: what is the role of a Crown Attorney in circumstances where, post-charge, she determines that a related charge is available on the facts and appropriately should be before the court?

[21] The applicant submits that the Crown in the present case crossed the line into core law enforcement functions by directing the police to lay the related impaired driving charge. The respondent submits that the Crown was simply giving legal advice, all the while observing the appropriate division between Crown and police roles. Having given the matter significant thought, I find I do not agree with either position taken in this case.

[22] First, it is appropriate at this time that I make my factual findings regarding what occurred after the Crown reviewed the brief during its case management function:

(1) The Crown, after a review of the disclosure, sent an email to a specialized unit at Halton Police, the "Crown Brief Review Group". This unit exists for the purpose of engaging with the Crown's office on issues related to criminal case management and disclosure.

(2) I do not accept, as argued by the Crown, that the purpose of this email was advice so that the police officer in question could better appreciate the legal test for impaired driving. First, the email was not sent to the officer-in-charge of the case, it was sent to an entirely separate unit of the police service. Second, the content and tone of the email directly related to the particular facts of this case, in service of a particular result – the laying of an impaired driving charge. Words matter. Viewed in isolation, the email sent could be characterized as a direction to the police to lay an impaired driving charge against Mr. Rak. In the overall context of this case, however, I am not satisfied that it was intended as such, nor that it was received in such a manner by the police service.

(3) I conclude that the Crown's email is more accurately described as a recommendation, not a "direction" as argued by the applicant. I come to this conclusion based on the entire evidentiary context before me. A system has been created where the Crown and the police can have a dialogue about case management issues such as disclosure or, as here, the laying of additional charges. Just as Crown assistance is often permissible during the investigative process, police assistance is equally valuable and appropriate during the prosecutorial portion of a criminal proceeding. Disclosure is often required to be obtained from complainants, witnesses, or arms-length agencies. At times, additional investigation is suggested by the Crown; at other times, it is legally mandated: e.g., R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 23, 49-51; Smith, para. 69.

(4) Special Constable Khan's statements before the Justice of the Peace are also relevant to my conclusion that the Crown's email was not taken as directive or mandatory by the police service. After affirming that the content of the new information was true, Khan told the Justice that "the writer is requesting a summons to be served... with an additional charge of impaired operation motor vehicle". This writer, while unnamed, I infer is a police officer in the "Crown Brief Review Group". I draw this inference because the Crown email did not mention a summons, so the writer being referred to cannot be the Crown. Further, the email was sent to a specialized branch of the police service whose function is to, in part, address Crown case management concerns. In the circumstances of this evidentiary record, I infer that a police officer received the Crown email and made an independent decision to have an officer attend the intake court for the purpose of having a "replacement information" and summons sworn to. The existence of the "Crown Brief Review Group", and the evidence of independent police decision-making (the decision to have a summons issued), lead me to the conclusion that, while the Crown's email initiated police consideration of the impaired driving charge, it did not direct that such a charge be laid, nor did it impermissibly intrude upon the core law enforcement function being addressed here: the laying of charges.

[23] Having determined that the Crown's actions are best described as a recommendation only, I am not satisfied that they violate the principles of fundamental justice. Indeed, an open dialogue between the Crown and the police at all stages of a criminal proceeding is commendable, so long as that dialogue takes place within a structure that observes the separate roles each actor performs. Police independence is not intruded upon by a case management Crown recommending an impaired driving charge accompany an 'Over 80' allegation; In a similar vein, Crown objectivity would not be imperiled by discussions with an investigating officer about an appropriate plea bargain approach in a given case. The sharing of information and advice between the two principal discretionary actors in the criminal justice system has the capacity to strengthen the process and assist in the pursuit of timely justice: see R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 3, 40-45; R. v. Sharma, 2019 ONCJ 481, at paras. 65-66. The key to such a dialogue, however, is mutual observance of each respective side's area of expertise and core functioning. The facts of this case do not cause me to question the existence of such mutual observance. [1]

[24] My conclusion regarding the impact of the Crown's recommendation to add a charge is additionally supported by the fact that, at the time of the impugned email, Mr. Rak was already before the court; his case had already progressed into the prosecutorial arena. There is a difference, in my view, between a Crown recommendation to lay charges at first instance and a recommendation to lay an additional charge, particularly one that is so closely related to the initial 'over 80' allegation. Such an approach was approved of by Justice Martin in his seminal Report, during a discussion of the Crown case management function: "Charge screening may also lead to further investigation, which can bolster the prosecution, reveal that it ought not to continue at all, or reveal that it ought to continue as a different charge or set of charges": Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Chair: G. Arthur Martin) (Toronto: Queen's Printer for Ontario, 1993), at p. 133 [emphasis added]. Crown consideration of related charges may very well constitute a core aspect of the prosecutorial function during the case management process. [2]

[25] In conclusion, I am not satisfied that a section 7 violation was occasioned by the Crown's decision to recommend the laying of an impaired driving charge against the applicant. This branch of the application is dismissed.

(3) The Justice of the Peace's "ministerial act" in receiving the information

[26] Section 504 of the Criminal Code addresses how a criminal information is presented and received by the court system. The Justice of the Peace's role in the process has been described as "ministerial": as long as the information presented is valid on its face, s. 504 mandates that the Justice "shall receive the information"; i.e. he shall permit it to be sworn or affirmed before him: R. v. Whitmore, [1987] O.J. No. 102 (H.C.J.), at p. 4 [QL], aff'd (1989), , 51 C.C.C. (3d) 294 (Ont. C.A.).

[27] In the present case, I am not satisfied that it has been established, on a review of the entire transcript of the intake proceedings, that Special Constable Khan did not personally believe he had reasonable grounds for the laying of the impaired charge. As I have previously found, he was attending before the Justice of the Peace at the direction of an officer in the "Crown Brief Review Group" for the purpose of having this information sworn. That direction, and the information he possessed about the citizen report, are enough to satisfy me that he possessed reasonable grounds at the time he affirmed. I do not accept that anything unconstitutional occurred during this aspect of the process.

(4) A prima facie case of impaired driving was not established on the record

[28] I am, however, satisfied that a basis for issuing process was not made out on the record of the proceedings before the Justice of the Peace. While accepting that these are focused hearings, the information provided to the Justice regarding impairment – as opposed to driving with excess blood alcohol – was minimal to non-existent, amounting only to the fact that a citizen called the police and "provided grounds" regarding impaired operation of a motor vehicle. This third-hand reference, devoid of content, is insufficient to establish a prima facie case of impaired driving. The process issued in this case was without lawful authority. I am satisfied a Charter violation follows, under either s. 7 or s. 9 of the Charter.

[29] Regarding remedy, I am not satisfied that this violation warrants quashing the information. In the circumstances of this case, the court already had jurisdiction over Mr. Rak by virtue of the process attached to the initial 'Over 80' information; once the new information was sworn and the court received jurisdiction over the impaired allegation, no further action or process was required. While I do not wish to diminish the liberty intrusion that could result from an invalid process, in this case the impact was virtually nil. Mr. Rak was already required to attend court on November 29, 2018. Nothing changed with the issuance of the new summons.

[30] In the circumstances, while the applicant has established a Charter violation, I decline to order either of the suggested remedies proposed by the parties. I am not satisfied quashing the information is required: see, relatedly, R. v. Ladouceur, 2013 ONCA 328. Further, as the summons has already been executed, any "quashing" of it would be ceremonial only. I choose to take no action in the circumstances.

IV. Disposition

[31] The ss. 7/24(1) application is dismissed.

Released: September 10, 2020

Justice Scott Latimer

Footnotes

[1] This analysis is, by necessity, context-specific. My analysis should be confined to the particular facts before me. It is not my intention to comment on whether the principles of fundamental justice would be violated on different factual findings, or in different circumstances than those I am presently dealing with. Any such findings would have to be based on the specific factual circumstances of such a future case.

[2] Similar language was adopted in the Royal Commission on the Donald Marshall, Jr., Prosecution, Findings and Recommendations, vol. 1 (Halifax: Province of Nova Scotia, 1989), at p. 233:

Once that initial decision has been taken the case is within the jurisdiction of the court. This seems to us to be the clearest point which for the purpose of legislation, can be used to mark the division in responsibilities of the police and the prosecutor. After that point the case should become the responsibility of the latter...; he may then on the information before him decide to proceed as charged, or to modify or withdraw the charges. In practice there is, of course, a variety of decisions taken as a case is being prepared for trial and is being tried. Those decisions will be for the prosecutor; and it is in that sense that he will have responsibility for the conduct of the case once the initial decision to proceed has been taken. [emphasis added]