WARNING The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. X.X., 2021 ONCJ 59 DATE: 2021 02 03 COURT FILE No.: 4821-998-20-Y230026-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
X.X.
Before: Justice Alex Finlayson Heard on: February 1, 2021 Ruling regarding Crown’s Application released on: February 3, 2021
Counsel: Sylvia Domaradski, for the Crown Danielle Robitaille and Kelsey Flanagan, for X.X.
ALEX FINLAYSON J.:
PART I: NATURE OF THIS RULING
[1] X.X. [1] is charged with several counts of sexual offences against the complainant. Although X.X. is now an adult, the offences are alleged to have been committed when both X.X. and the complainant were younger. I am told that another judge of the Ontario Court of Justice transferred this matter to this Court, pursuant to section 16 of the Youth Criminal Justice Act. This matter is now proceeding in the youth court. X.X. was arraigned on February 1, 2021. He elected to have a trial in this Court, and pleaded not guilty to all counts. Following X.X.’s arraignment, I heard argument of a Crown Application. This is my ruling concerning that application.
[2] The complainant is deceased. The next scheduled event in this case is a multi-day voir dire, to begin before me at the end of March, 2021. At the voir dire, the Crown will seek to introduce a number of hearsay statements via several witnesses. The complainant is said to have disclosed the historical assaults to several persons. The Crown brings this application for an order that will allow it, in effect, to elicit additional hearsay statements and possibly information that is not hearsay, from two lawyers who had prior involvement with the complainant. The Crown says that the additional statements will be highly relevant to the proper disposal of the voir dire, and the trial proper. But the difficulty is that the police cannot interview the two lawyers in advance, because the two lawyers are concerned about disclosing privileged and/or confidential information, contrary to the Law Society of Ontario’s Rules of Professional Conduct.
[3] The Crown says that the anticipated information is not even protected by solicitor-client privilege. The Crown also says that the complainant’s estate trustee has signed a valid waiver. Nevertheless, the lawyers will not cooperate without an order.
[4] That, in a nutshell, is the subject matter of the Crown’s application.
[5] The Crown served its application on both lawyers. They chose not to appear and to make submissions. I do not believe that the complainant’s estate trustee was served. Given an issue about the validity of a waiver that is said to exist, (which I address below), the failure to serve the estate trustee might have been problematic, were I to have found that this Court actually has the jurisdiction to entertain the Crown’s application.
[6] X.X. takes no position on the merits of the Crown’s application. In fact, his counsel concedes he lacks standing to make submissions about the merits. But much of the argument focused on this Court’s jurisdiction to grant the relief sought by the Crown. Counsel for X.X. asked for standing to draw my attention to her concern about this Court’s lack of jurisdiction. The Crown challenged Ms. Robitaille’s standing to even avert to this potential lack of jurisdiction.
[7] For oral reasons already delivered, I granted counsel for X.X. the right to make submissions about this Court’s jurisdiction (or lack thereof), to decide the application. As I was not asked to allow her to make submissions on the merits, I did not need to rule on that.
[8] It was my view that X.X. has a direct interest in what this Court is being asked to do, insofar as he has a legitimate interest in this Court only acting within its jurisdiction in a prosecution of him. Alternatively put, X.X. has an interest that this Court not exceed its jurisdiction. Any action by this Court in excess of its jurisdiction, could in turn impact the evidentiary record, and that could in turn impact X.X.’s right to a fair trial.
[9] Further, I note that the Crown conceded, that were I to exceed my jurisdiction in deciding its application, X.X. would then have the ability to challenge that excess of jurisdiction in a proceeding before a Superior Court. It seemed illogical to me, that X.X. would have the ability to challenge my ruling later on, but not be allowed to address that issue at first instance.
[10] At the conclusion of submissions, I advised counsel, that given the novelty/complexity of the Crown’s application, I intended to reserve. Nonetheless, I am aware that time is of the essence if additional steps are now to be taken as a result of this ruling, and so I have striven to be very prompt in the release of this ruling.
[11] For the reasons that follow, I find that this Court lacks the jurisdiction to grant the Crown the order it seeks. If the Crown still intends to seek the order claimed in its application prior to the commencement of the voir dire, it should bring an application to the Superior Court for declaratory relief.
PART II: BACKGROUND AND CONTEXT OF THE APPLICATION
[12] It is necessary for me to set out some further background, to provide additional context for this ruling.
[13] The Crown alleges that when the complainant was younger, he and his younger brother were babysat by X.X. The Crown says that when the complainant became an adult, he confided in numerous people that X.X. had sexually assaulted him during the timeframe that he babysat.
[14] As I said, the complainant has since passed away. There had been no police investigation of the allegations until after his death. Several of the complainant’s family and friends, in whom it is said he confided, have now been interviewed and have provided statements to the police. I gather that it is these statements, which will form part of the voir dire at the end of March, 2021.
[15] Interestingly, there has already been one Court application, post the complainant’s death, concerning whether certain information about the complainant is protected by solicitor-client privilege or confidentiality. It was taken to the Superior Court, but as the Crown points out, at the time, no charges had yet been laid against X.X. There was no process in this Court in which it could have proceeded in the alternative.
[16] The Crown says that during the initial stages of the investigation, it was learned that a large part of relevant documents pertaining to the investigation were held by a law firm. So the Crown proceeded by way of a Lavallee application in the Superior Court. However, there were some issues with the Lavallee application.
[17] When the complainant died, he did not have a will. I am told that Ellies J. of the Superior Court was concerned about solicitor-client privilege, since the application concerned documents in a law firm’s file. While it is not fully clear from the Crown’s materials now before me, it appears that the Lavallee application was adjourned, to allow a family member of the complainant to apply for a Certificate of Appointment of Estate Trustee Without a Will. Once that was done, the family member signed a waiver on the complainant’s behalf. That is the waiver that the Crown says would apply on this application, too.
[18] However, the Crown’s brief, now before me, describes that waiver as being “with respect to the contents of the file”, not regarding the two lawyers it wants the police to interview. In any event, on what I assume was a subsequent attendance before Ellies J., I am told that Ellies J. held the waiver to be proper, and the contents of the law firm’s file were then released to the Ontario Provincial Police (the “O.P.P.”).
[19] I was not given either a copy of the waiver, nor Ellies J.’s ruling. During submissions, counsel for X.X. told the Court that there was no valid waiver as it pertains to the subject matter of this application. By contrast, the Crown orally advised me that the waiver may in fact be broader than how she described it in her brief.
[20] I turn next to how the two lawyers, who are the subject matter of this application, came to the Crown’s attention. The Crown says it learned of their existence, around the time of X.X.’s arrest in May 2020 [2], [3]. I am told that the complainant had been charged with two impaired driving offences, most recently in 2014, but also previously in 2004. I am told that one of the Crown’s witnesses will say the complainant left the court house after one of the appearances in that 2014 proceeding, and he was acting distraught and crying. Apparently, the complainant then disclosed to that witness, that while he was in the court house, he had seen the person who had abused him, and that was X.X.
[21] Having learned of this information, a Detective Inspector with the O.P.P. then reached out to the complainant’s defence lawyer on that impaired driving charge. That lawyer is named Mr. I. I am told that Mr. I. initially told the police that if he was provided with a written consent on behalf of the complainant “waiving the solicitor-client privilege”, he would consider disclosing the information that he had or knew. The Crown says that during a follow up phone call on May 26, 2020, Mr. I. further indicated that “his records are all in storage but that he has a very good recollection of this matter”. It was at that point that Mr. I. provisionally agreed to giving a statement, subject to getting legal advice. But Mr. I. subsequently cancelled his police interview that was later scheduled for June 2, 2020. His reason was that he had spoken with the “Law Society of Ontario who advised him there was a rule preventing him from sharing information with police without a court order.”
[22] It appears that Mr. I. may have evidence concerning the complainant and X.X. as a result of his representation of the complainant in 2004, too. The Crown says it will demonstrate that the 2004 charges were withdrawn. The Crown says that another of its witnesses will say that the complainant alleged X.X. had something to do with the withdrawal. The Crown believes that Mr. I. will know about this, too.
[23] Then, there is the second lawyer, named P.S. During the preliminary discussions with Mr. I. about the potential police interview, Mr. I. identified another lawyer, P.S., as someone who would “know of the abuse of the complainant by X.X.” Apparently P.S. had referred the complainant to Mr. I. The Crown’s brief says that P.S. has been contacted, and that he “confirmed that he has knowledge of confidential information with respect to the complainant”. There is no further description in the Crown’s brief as to what that might be.
PART III: APPLICABLE LEGAL PRINCIPLES
A. The Confidentiality Provisions of the Rules of Professional Conduct
[24] The Crown’s application rests heavily, if not entirely on Rules 3.3-1 and 3.3-1.1 of the Law Society of Ontario’s Rules of Professional Conduct, as giving this Court its jurisdiction to make an Order.
[25] Rule 3.3 deals with confidentiality generally. Rules 3.3-1 and 3.3-1.1, upon which the Crown specifically relies, read as follows:
3.3-1 A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless:
(a) expressly or impliedly authorized by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted by rules 3.3-2 to 3.3-6.
3.3-1.1 When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required.
[26] These rules cover information that goes beyond that which is just protected by solicitor-client privilege. According to these rules, a lawyer is precluded from divulging “ all information concerning the business and affairs of the client acquired in the course of the professional relationship ” [emphasis added] unless one of the four subparagraphs is engaged. Even then, a lawyer is only allowed to disclose only as much information as is required.
[27] The Crown’s submissions focussed both on this Court’s jurisdiction to grant it the order it seeks, and on the merits of the application. Given my conclusion about jurisdiction, I will not delve into the substantive issues any further. I will however, identify in a footnote, the substantive questions as they were framed for the Court. [4]
[28] On the issue of jurisdiction, whether or not this Court may grant the Crown’s application, turns entirely on what this Court is expressly or impliedly authorized by law to do. The Crown says that the Rules of Professional Conduct are an answer to that question. It is true that rule 1.1-1 of the Rules of Professional Conduct defines a “tribunal” to include “courts, boards, arbitrators, mediators, administrative agencies, and bodies that resolve disputes, regardless of their function or the informality of their procedures”. The Crown submits therefore, that it may apply to this Court as a “tribunal of competent jurisdiction” under rule 3.3-1(b) of the Rules of Professional Conduct, for an order authorizing the lawyers to divulge the information they have.
[29] Clearly, this Court is a “court” within the definition of “tribunal” in Rule 1.1-1. However, that does not automatically make it a “tribunal of competent jurisdiction” within the meaning of rule 3.3-1(b), nor does it mean that rule 3.3-1(b) is express authority allowing the Crown to bring an application pursuant to the rule.
[30] In my view, the jurisdiction questions that this Court must decide may be framed as follows:
(a) whether these rules on their own actually authorize an application to be brought;
(b) if not, whether there exists other jurisdiction for the Crown’s application; and
(c) depending on either (a) or (b), whether this Court is “competent” to hear and decide such an application.
B. The Crown’s Argument by Analogy to Charter Cases
[31] The Crown argues that the Rules of Professional Conduct provide sufficient authority for the bringing of this application, by analogy to cases interpreting section 24(1) of the Canadian Charter of Rights and Freedoms. The Crown cites Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 1084, and says that provincial court trial judges are competent to award Charter remedies. According to the Crown, this Court would have similar jurisdiction to decide the question of law before it now, on a similar legal theory.
[32] In Mooring v. Canada (National Parole Board), although the Supreme Court ultimately found that the National Parole Board lacked the jurisdiction to grant a Charter remedy, at ¶22-23, Sopinka J. said the following:
[22] …. A court of competent jurisdiction in an extant case is a court that has jurisdiction over the person, the subject matter and has, under the criminal or penal law, jurisdiction to grant the remedy [5]; and
[23] ….jurisdiction over the parties, the subject matter and the remedy are necessary conditions for a statutory tribunal to be considered a court of competent jurisdiction within the meaning of s. 24.
[33] In R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, McLachlin J. elaborated about what that means, although still speaking in the Charter context. Specifically, she considered whether this Court, and in particular whether a justice of the peace, sitting in a trial court that had been constituted under the Provincial Offences Act, was a “court of competent jurisdiction” to award a particular Charter remedy. In determining that the provincial offences court was a court of competent jurisdiction, McLachlin J. held that a statutory court or tribunal’s ability to grant a Charter remedy depends on its “function and structure”.
[34] Section 24 of the Charter in itself does not confer jurisdiction on any court or tribunal. Rather, the power of a court to grant the Charter remedy sought, must emanate from another source. McLachlin J. said, “[i]t is a fundamental principle that statutory bodies may perform only those tasks assigned to them by Parliament or one of the provincial legislatures, and in performing those tasks they have at their disposal only those powers granted to them expressly or impliedly.” And, “where parliament or a legislature confers on a court or tribunal a function that engages Charter issues, and furnishes it with procedures and processes capable of fairly and justly resolving these incidental Charter issues, then it must be presumed that the legislature intended the court or tribunal to exercise this power”. See R. v. 974649 Ontario Inc., paras. 26 and 35.
[35] Subsequent decisions have applied a similar test as that articulated by McLachlin J. in R. v. 974649 Ontario Inc., in the non-Charter context, too.
C. This Court’s Jurisdiction Must Therefore Either Be Express or Implied
[36] R. v. Fercan Developments Inc., 2016 ONCA 269 considered whether a judge of this Court has jurisdiction to order costs against the Crown, in a forfeiture hearing under the Controlled Drugs and Substances Act, in the absence of an express statutory provision authorizing same. The costs claim was based on crown misconduct, not a Charter breach per se.
[37] At ¶ 41 and 44 of R. v. Fercan Developments Inc., the Ontario Court of Appeal said the following about the jurisdiction of this Court, specifically to award remedies not mapped out in enabling legislation:
(a) This Court does not have any inherent jurisdiction. Its jurisdiction derives from statutes;
(b) This Court will have jurisdiction if it has authority over the persons in, and the subject matter of a proceeding, and has the authority to make the order sought;
(c) A statutory court enjoys both the powers that are expressly conferred upon it by statute, but also by implication, any powers that are reasonably necessary to accomplish its mandate; and
(d) Powers may be implied in the context of particular statutory schemes.
[38] At ¶ 45-48 of R. v. Fercan Developments Inc., the Ontario Court of Appeal went on to elaborate about when the powers of a statutory court may be implied. It involves an exercise in statutory interpretation of the enabling legislation. In summary, the Court held jurisdiction may be implied:
(a) when the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate. (Necessity need not rise to the standard of absolute necessity, but just be practically necessary for the statutory court to effectively and efficiently carry out its purpose);
(b) when the enabling act fails to explicitly grant the power to accomplish the legislative objective;
(c) when the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction;
(d) when the jurisdiction sought is not one which the statutory body has dealt with though the use of expressly granted powers, thereby showing an absence of necessity; or
(e) when the legislature did not address its mind to the issue and decide against conferring the power to the statutory body.
D. The Court’s Jurisdiction to Control Its Process
[39] Statutory courts also possess powers to control their processes. In “The Inherent Jurisdiction of the Court”, (1970), 23 Curr. Legal Probs., 23 at page 51, (which the Supreme Court has adopted as authoritative), Sir I.H. Jacob describes the inherent jurisdiction of a superior court as “a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so”. Such powers enable “the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner”. See also R. v. Caron, [2011] 1 S.C.R. 78, para. 24 and R. v. Cunningham, [2010] 1 S.C.R. 331, para. 18. However, even in the case of statutory courts, the Supreme Court held at ¶ 19 of R. v. Cunningham, that judges possess the “authority to control the court’s process…”
[40] The limits on the authority of a judge of a statutory court to control his or her own process are nowhere defined. Sir I.H. Jacob suggests they would at least include contempt in facie and the power to stay or dismiss and action that is frivolous or vexatious. See “The Inherent Jurisdiction of the Court”, pages 49 and 50. However, at ¶ 52 of R. v. Fercan Developments Inc., the Ontario Court of Appeal suggests that such powers are broader, holding that the Ontario Court of Justice’s ability to control its own process would largely parallel that of the Superior Court. And so in that regard, Sir I.H. Jacob suggests that the Superior Court’s powers to control its process would include powers to “regulate process and proceedings”, “powers to address abuse of process”, “powers to compel observance of the Court’s process” and administrative powers. See “The Inherent Jurisdiction of the Court”, page 32. In Quebec (DCPP) v. Jodoin, [2017] 1 S.C.R. 489, paras. 16 and 17, the Supreme Court described courts’ powers over their own processes as one, “… to maintain the respect for their authority…” and “…the power to manage and control the proceedings conducted before them”.
PART IV: ANALYSIS
A. The Crown’s Analogy to Charter Cases
[41] While I do find the legal principles, in the Charter cases, about when this Court would have implied jurisdiction to be applicable to the analysis that I will apply, there is one fundamental distinction between the Charter case upon which the Crown relies to draw an analogy, and the jurisdictional issue raised in the Crown’s application before me. That difference is found in the wording of section 24(1) of the Charter itself, and its absence from the Rules of Professional Conduct renders the Crown’s comparison less analogous.
[42] Section 24(1) of the Charter reads:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances [emphasis added].
[43] In other words, the Charter’s remedial section itself bestows upon individuals a right to apply to relief. That of course makes sense if the rights enshrined in the Charter are to be given any meaning. So the issue about jurisdiction in the Charter cases is not really always about whether an application may be brought, but where.
[44] By comparison, there is no specific language in the specific rules of professional conduct upon which the Crown relies, giving either the Crown or even the lawyers, the right to make an application for a ruling about confidentiality and therefore an order allowing them to divulge. So in this regard, I am unable to find the Crown’s Charter analogy to be entirely on point.
B. This Court Lacks the Express Jurisdiction to Decide the Crown’s Application
[45] Nevertheless, I will consider whether there is any express jurisdiction to decide the Crown’s application. I turn to enabling legislation. Section 38(1) of the Courts of Justice Act states that a provincial judge has the power and authority of two or more justices of the peace when sitting in the Ontario Court of Justice and shall exercise the powers and perform the duties that any Act of the Parliament of Canada confers on a provincial court judge when sitting in the Ontario Court of Justice.
[46] Section 38(3) of the Courts of Justice Act states that the Ontario Court of Justice is a “youth court for the purposes of the Young Offenders Act (Canada) and a youth justice court for the purposes of the Youth Criminal Justice Act (Canada)” [6].
[47] Neither counsel directed me to anything else that is expressly in the Criminal Code, the Youth Criminal Justice Act, any other federal statute, the rules of this Court, the Courts of Justice Act, the Rules of Professional Conduct, the Law Society Act, or any other piece of provincial legislation that would authorize the Crown to bring this application in this Court. Counsel for X.X. says that is because no such provision exists.
[48] Again, the Crown says that the reference to a “tribunal of competent jurisdiction” in rule 3.3-1 suffices to authorize the application. I disagree for the reasons already expressed. I agree with counsel for X.X. that this rule merely refers to a “tribunal of competent [jurisdiction’s]” order as being sufficient to allow a lawyer to divulge confidential information; it says nothing about there being express authority granted to this Court to make such an order, or that such an application may be brought here. By contrast, there is a specific statutory provision in the Courts of Justice Act, which I will come to, that authorizes such an application to be brought in the Superior Court. Therefore, I find there is no express jurisdiction.
[49] I next consider whether there is any implied jurisdiction. Likewise, I find there is not for the reasons that follow.
C. This Court Lacks Implied Jurisdiction to Decide the Crown’s Application
[50] Obviously, to consider whether it is “necessary to imply such jurisdiction to fulfil the objects of the legislative schemes” that govern this proceeding, and to determine whether implied jurisdiction “is essential to [this Court] fulfilling its mandate”, I must define both the objective of the legislative schemes, and this Court’s mandate.
[51] It must be remembered that this is a proceeding between the state and X.X., not a proceeding between the state and two of its witnesses, or between the state and two of its witnesses and the complainant’s estate trustee. In broad terms, the legislative schemes that govern this proceeding between the state and X.X. are the Criminal Code and the Youth Criminal Justice Act.
[52] It would be a daunting task to comprehensively summarize all that these statutory schemes entail. That said it is not necessary for me to do so. Likewise, I need not exhaustively set out what the Court’s mandate is, in discharging its functions in this case.
[53] For the purposes of this application, suffice it to say, this Court is a designated youth court. This Court has also now been constituted as a trial court, as a result of X.X.’s election and arraignment. In short, this Court’s job is to properly dispose of the litigation between the state and X.X. Obviously in so doing, the Court must apply the rules of procedure and the laws of evidence, and it will engage in a truth-seeking function. The Court must also ensure that X.X. has a fair trial. It will make legal and evidentiary rulings that arise in the course of the trial, for example about what evidence is admissible and whether possible evidence is protected by privilege. But this application is not that.
[54] By contrast, the scheme set out in the Rules of Professional Conduct is quite different. The Rules of Professional Conduct, read as a whole, govern the conduct of lawyers in Ontario. As the Supreme Court held in R. v. Cunningham, [2010] 1 S.C.R. 331, para. 36, “[t]he rules enacted by the law societies are essential statements of the appropriate standards of professional conduct”.
[55] The specific rules upon which the Crown relies, operate to regulate lawyers’ conduct surrounding whether, and if so how confidential information might be disclosed. Mostly, it will be prohibited, except in limited circumstances.
[56] In most instances, issues regarding a lawyer’s conduct are a matter for the Law Society to deal with. They are not binding on the Court. That said, I do acknowledge that rule 3.3-1 does make provision for an appropriate court to weigh in on whether confidential information may be divulged. Indeed, the Supreme Court has said, albeit in a different context, that the use of the Rules is not the exclusive domain of law societies. The mandate of a court, including this Court, is “…to protect the administration of justice and ensure trial fairness”. But again, a legal question must be properly before it before these rules may be engaged. I fail to see how they confer any implied jurisdiction to this Court to decide a pre-trial application, for a ruling in aid of an investigation. In my view, this Court does not have a clear mandate or objective to fulfil there, at least not yet [7].
[57] I considered whether there was merit to an argument that there is some implied power to decide the Crown’s application, incidental to this Court’s mandate to get at the truth in the proceeding concerning X.X., or whether this Court could give an advance ruling on this legal question in the interest of efficiency (ie. in advance of a circumstance of the kind that might arise which I describe in Footnote 7). But ultimately, I am concerned that the application in this Court is premature.
[58] I am also troubled by the wholesale absence of any statutory provisions, or rules, that authorize the Crown to obtain orders of this nature. As counsel for X.X. submitted, the state has a myriad of investigative tools at its disposal, but a pre-trial application in this Court to get a ruling about confidentiality so it may interview a witness is not one of them. Were this a civil proceeding for example, a litigant could have sought an order for the pre-trial questioning of a non-party if there was resistance on the part of that litigant to divulging evidence prior to trial. There would then be a forum, on motion, to consider whether there would be pre-trial discovery of this nature and if so, to resolve any privilege or confidentiality issues. But no such right to compel a witness to speak to the police exists in the criminal context. It seems to me therefore, that the order sought by the Crown, is really in aid of its investigation.
D. This Court Even Lacks Jurisdiction Over the Two Lawyers, and Over the Subject Matter of the Crown’s Application, At this Point
[59] There is an even more fundamental problem with the Crown’s application, although it is one that has already permeated throughout the above analysis. That problem becomes clear when the subject matter of this proceeding is properly identified, and when this Court closely scrutinizes whom it has authority over at this point in the proceeding.
[60] Again, there is no question that the subject matter of the proceeding is X.X.’s guilt or innocence. The subject matter of the proceeding is not whether there is a confidentiality interest or privilege in information that the deceased complainant shared with his former counsel, and which former counsel might divulge if authorized to speak to the police, out of court, and prior to their in court testimony. Barring perhaps a future records application that X.X. may bring, or a legal argument that arises during a witness’ testimony, privilege and confidentiality of these lawyers’ information are not yet the subject matter of this trial.
[61] Insofar as authority over the person is concerned, while the Court has jurisdiction over X.X., as I have already said, it does not have jurisdiction over any of the witnesses yet, including the two lawyers in issue. That will change once/if there is a subpoena served upon them. See for example section 700 of the Criminal Code. But at this point, they are potential witnesses only and not subject to the power of this Court.
[62] I therefore question at this point how this Court can imply jurisdiction to make legal rulings about strangers to the litigation.
E. The Court’s Control Over Its Process Does Not Include the Jurisdiction to Decide the Crown’s Application
[63] I conclude with a consideration of the Court’s power to control of its own process. Although the full extent of this Court’s power to control its process is nowhere defined, the Criminal Rules of the Ontario Court of Justice do provide some useful guidelines, in broad strokes, as to where the limits might start to align. I say that in part because it is likewise well established that the Court cannot make rules that confer upon it extra powers, that it otherwise does not have.
[64] Nowhere in the rules is there provision for any type of application of the kind brought by the Crown.
[65] While I do not purport that this list is exhaustive, based on my review of the case law, I note that a statutory court’s power to control its process has been defined to include the power over adjournments, disclosure, overseeing the solicitor-client relationship between the accused and his counsel (for example requests to remove counsel), costs, the power to appoint amicus, and the power to make amendments to its orders to ensure they reflect the manifest intention of the Court. But I am aware of no case in which a statutory court has determined that it has, as part of the control over its own process, stand alone jurisdiction to decide a question of law, disconnected from an evidentiary ruling raised during testimony during a trial, about a matter that arises between the Crown and a non-party witness, and which would potentially impact the rights of a deceased complainant [8].
[66] And finally, even though the limits of this Court’s control over its process are nowhere fully defined, it is well established that a statutory court’s powers do not go so far as to contravene explicit statutory provisions that say otherwise, or constitutional principles like the separation of power. See ¶ 52 of R. v. Fercan Developments Inc. I find that were I to decide the Crown’s application, this Court would be improperly entrenching into an area that is the exclusive domain of the Superior Court.
F. What The Crown Truly Seeks Is Declaratory Relief
[67] I am mindful of McLachlin J.’s admonition at ¶ 44 of R. v. 974649 Ontario Inc., that in interpreting the scope of its powers, the Court must look at its own function, within the broader legal system. Having carefully looked at the substance of the Crown’s application, I find that what the Crown has actually sought, is declaratory relief without any consequential relief being claimed. And there is no debate that this Court may not grant it such declaratory relief.
[68] Section 11(2) of the Courts of Justice Act states that the Superior Court has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario. Section 97 of the Courts of Justice Act states that the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make binding declarations of right whether or not any consequential relief is or could be claimed. It is clear and well-established that there is no statutory provision (nor any inherent jurisdiction) that authorizes the Ontario Court of Justice to grant declaratory relief.
[69] As set out in S.A. v. Metro Vancouver Housing Corp., [2019] 1 S.C.R. 290, para. 60, declarations are made pursuant to a four-part test:
(a) First, the Court must have jurisdiction to hear the issue;
(b) Second, the dispute must be real and not theoretical;
(c) Third, the party raising the issue must have a genuine interest in its resolution; and
(d) Fourth, the responding party should have an interest in opposing the declaration being sought.
[70] Since the first branch of the test requires the Court hearing the case to have the jurisdiction to grant a declaration, the Crown’s application in this Court would fail on the first branch of the declarations test, too.
G. The Crown’s Explanation For Not Proceeding in the Superior Court, Once Charges Against X.X. Were Laid
[71] The defence alleges that the Crown could have brought this application in the Superior Court at any point after May, 2020, when it learned that this information might exist. It says the Crown has delayed, and that any delay occasioned from it now going to the Superior Court, (should it decide to pursue that avenue after this ruling), must fall on its shoulders.
[72] As I expressed during argument, and apart from identifying the delay issue here for the written record, I say nothing further about these submissions from the defence. If delay becomes an issue that is raised later on, it will have to be argued in due course, in the proper manner.
[73] That said, I do wish to address the Crown’s comments, raised in argument, that had she just taken this application to a Superior Court judge in the first place, that judge might have questioned whether the application ought to have been addressed in this Court. In other words, the Crown raised a concern about being bounced back and forth between courts, a result which obviously she wished to avoid.
[74] The concern is understandable given the novelty of the application. But I direct the Crown to ¶ 27 of R. v. Caron, where the Supreme Court held that superior courts have, “…from time to time exercised their inherent jurisdiction to render assistance to inferior courts as circumstances required. Novelty has not been treated as a barrier to necessary action.” It is true that this is to be exercised sparingly, but that would be “in circumstances where the inferior tribunals are powerless to act and it is essential to avoid an injustice that action be taken”. See R. v. Caron, para. 30; see “The Inherent Jurisdiction of the Court”, page 48. Another example would be where there is no reasonable alternative procedure available in the provincial court. See Kourtessis v. M.N.R., [1993] 2 S.C.R. 53.
PART V: CONCLUSION
[75] Therefore, I find that this Court lacks the jurisdiction to grant the Crown the relief it seeks. The Crown’s application is dismissed without prejudice to it seeking declaratory relief from a judge of the Superior Court.
[76] Concurrently with the release of this Judgment, I will have the Court organize a conference or zoom call with counsel, in the nature of a trial management conference, in advance of the voir dire.
[77] I wish to thank both counsel for their assistance with this matter.
Released: February 3, 2021 Signed: Justice Alex Finlayson
[1] These are not the accused’s actual initials. I have changed them out of an abundance of caution keeping the confidentiality provisions in the YCJA in mind.
[2] Initially, there were three lawyers of interest, but one is no longer being pursued, after he said he could not provide a statement for various reasons.
[3] As I will explain later, counsel for X.X. says the Crown has delayed pursuing this information.
[4] The substantive questions, as they were framed before me, were:
(a) Whether the information the Crown seeks was even protected by solicitor-client privilege, or whether it is merely confidential information of the broader kind covered by the rule;
(b) Whether the complainant’s estate trustee signed a valid waiver and the impact of the waiver;
(c) If in fact there is no waiver, but if the subject matter of the anticipated information is protected by solicitor-client privilege, whether the Court may permit the lawyers to divulge the information notwithstanding the privilege, under an exemption to the doctrine of solicitor-client privilege;
(d) If the subject matter of the anticipated information is confidential information (but not protected by solicitor-client privilege), whether the Court should permit the lawyers to divulge the information.
To this I would add that service on the estate trustee might have become an issue, depending on the validity of the waiver issue.
[5] In this passage, Sopinka J. is actually citing Lamer J., from Mills v. The Queen, [1986] 1 S.C.R. 863.
[6] There is a separate provision in section 38(2) of the Courts of Justice Act that empower this Court to deal with family law matters and provincial offences, neither of which is relevant to my analysis.
[7] Counsel for X.X. says these rules are interpretative. I mostly agree with her, but also being mindful of the Supreme Court’s comments in R. v. Cunningham. I wish give an example of how the rule could become engaged in this Court in such am manner, that would also fall within this Court’s mandate.
Suppose the Crown subpoenas one or both of the lawyers to testify at the voir dire. The lawyer(s) then say they are precluded from answering the questions put to them. There would then be argument about solicitor-client privilege and the applicability of the Rules in that context. At that point, as I will later explain, this Court would be competent to render a legal ruling about that, and would consider the Rules in its deliberations, and its ruling. If the Court’s ruling then authorized the lawyer(s) to divulge, they would not be in breach of the rule.
[8] To this I would add again, that while the Crown did serve the lawyers with its application, I do not believe that the estate trustee was served, I was not given the waiver, and again, I was told inconsistent things about the contents of the waiver. I question whether I could have decided the application on its merits under the circumstances, had I found jurisdiction to do so.