Court and Parties

DATE: January 10, 2024 ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. GENEVIEVE ELIANY

P R O C E E D I N G S A T C O N T E M P T C I T A T I O N

BEFORE THE HONOURABLE JUSTICE M. WENDL On Wednesday, January 10, 2024 at HAMILTON, ONTARIO

Appearances

M. Moser Counsel on behalf of the Crown S. Cowan Counsel on behalf of Genevieve Eliany

Ruling

WENDL, J. (Orally)

I’ve had an opportunity to review my transcripts of November 8th and December 13th. Given that this happened quickly in court, I am giving my full reasons for the contempt citation towards Ms. Eliany.

During the pre-trial of November 8th I requested a memo outlining Ms. Eliany’s position on a 276 application. During the pre-trial I reiterated numerous times I did not understand the basis for her application. As a result, I ordered her to provide me with a memo. To be clear, if you refer to the November 8th transcripts, if you have them, I’ve got a copy of them if you need them, my secretary will send them to you. It’s not a factum, it was not an application; it was a memo to assist me to perform my judicial pre-trial function. Ms. Eliany refused on November 8th during the pre-trial. She scheduled another pre-trial despite my request, my order, in fact, to provide me with a memo. She indicated she was not going to provide one. As a result, I was left with no choice but to cite her in contempt.

The enabling statute for judicial pre-trials is found under s.625 of the Criminal Code and it states, “Subject to subsection (2), on an application by the prosecutor, or the accused, or on its own motion the court, or the judge, Provincial court or justice, before whom any proceeding are to be held may order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by the court, judge, Provincial court judge or justice, be held prior to the proceeding to consider the matters that, to promote a fair and expeditious hearing would be better decided before the start of the proceedings and other similar matters, and to make arrangements for decisions on those matters.”

As Justice Watt noted in S.S.S. [1999] OJ 1922,

The authority of the pre-trial justice need not be conferred by the enabling provision of s.625(1)(i). It may also arise from necessary implication of powers expressly given.

See paragraph 42 of that decision.

My authority to order a memoranda outlining the defence’s position on a 276 application so that I can understand the defence’s position - and again, this application, the burden rests on the defence at trial – comes from the statutory language of the section. And again, “The purpose is to promote a fair and expeditious hearing, would be better decided before the start of the proceedings and other similar matters and to make arrangements for decisions on those matters.”

As Justice Watt noted again in S.S.S.,

The pre-hearing conference judge is authorized to consider any matters that would be better decided before the start of the proceedings to give effect to this purpose. She or he is authorized to make arrangements for decisions on those matters.

Unlike in S.S.S., where the issue involved reviewing a Crown disclosure decision, I am specifically asking for a memoranda so I can make arrangements for decisions on those matters. Again, specifically allowing time for a pre-trial motion under 276.

Without being able to understand the defence’s position, I cannot attend to my pre-trial function. As the Ontario Divisional Court said in R. v. Li [2008] 92006,

Although a pre-trial judge does not make any adjudicative decisions on a pre-trial, he or she is clearly performing a judicial function when he or she conducts a pre-trial. See Edwards v. Canada [1999] 15109 ONSC, A pre-trial judge is not, as the Applicant suggests, a kind of judicial stenographer of positions taken. Rather, the pre-trials are held to facilitate and resolve matters before the court, and as such, a judge at a pre-trial is engaged in an integral part of judicial function.

The Alberta Court of Queens Bench has also weighed in on this issue as to the authority of the pre-trial judge, and I quote from paragraph 75 of R. v. M.L.K. [2004] ABQB 734,

In the result, the role of the pre - trial conference judge under s.625(1) (ii) of the Criminal Code is to take reasonable and necessary steps to ensure that a fair, efficient, lawful, and coherent trial occurs. It is not necessary in every case of the pre-trial conference to make all subsidiary or ancillary directions that a trial judge is in a better position to make. It is probably not even appropriate to do so in most cases.

However, the question in this instance comes down to considering what I directed at the pre-trial conference. If those directions accord with the terms in the policy of 625.1 of the Criminal Code, then the directions made should stand.

Again, for the sake of repeating myself, the purpose of the pre-trial is to make arrangements for matters and potentially streamline proceedings. For example, in the current case, a proper understanding of the defence position could lead to a concession on Step One from the Crown, hence, streamlining positions.

As the Court of Appeal noted in Jurkus [2018] ONCA 489, meaningful discussions are crucial to the pre-trial process.

Personal appearance accords with the purpose pre-trials are designed to achieve. They are not simply a part of a checklist on the road to trial. They’re designed to promote a general efficiency in the criminal justice system by, among things, facilitating resolutions, resolving issues, simplifying motions, arrive upon agreed facts, identifying triable issues, and setting meaningful schedules. In this age of concern about delay in our criminal justice system, there’s an added premium in ensuring the success of judicial pre-trials. Undoubtedly, personal attendance enhances the opportunity for meaningful discussions and successful outcomes.

In addition to that, I quote from R. v. Brown [2019] ONSC 6689, paras. 40-42.

A judicial pre-trial conference is not a mere administrative formality in scheduling process. Effective management depends on meaningful judicial pre-trials. Real engagement by everyone involved is necessary, given the shared obligation of all participants to ensure an efficient allocation of scarce resources to minimize delays in the criminal justice system. See Jordan at paragraph 114 and R. v. Cody [2017] SCC 31.

And again, I’m being very clear, the purpose of my order for a memo, a simple memo, was so I could understand the defence’s position, engage in a meaningful discussion with defence and the Crown.

And again, I’m quoting from paragraph 114 of Jordan, meaningful discussion is crucial at a pre-trial. And I quote at paragraph 114,

The new framework makes courts more accountable, too. Absent exceptional circumstances, the ceiling limits the extent to which judges can tolerate delays before a stay must be imposed. Indeed …

And this is the important part,

…Indeed, courts are important players in changing the courtroom culture. Many courts have developed robust case management and trial scheduling processes, focusing attention on possible sources of delay such as pre-trial applications or unrealistic estimates of time, thereby seeking to avoid or minimize unnecessary delay.

As Justice Latimer noted in the recent case of B.C.S. [2019] ONCJ 467,

I read these rulings as recent reminder of a historical truth: all courts – Superior and inferior - possess inherent procedural jurisdiction to make orders that are practically necessary to ensure that the proceedings they are statutorily mandated to conduct are administered justly and fairly. The fact that the Superior Court of Justice additionally has inherent substantive authority does not leave a statutory court without the power to make procedural orders that are necessary to control its own process and ensure that justice is done.

Based on the foregoing, as I indicated, you now have my full reasons for citing Ms. Eliany in contempt in her refusal to, in my view, effectively participate in the pre-trial process.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

EVIDENCE ACT

I, Cara Higson, certify that this document is a true and accurate transcript of the recording of Genevieve Eliany in the Ontario Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from the Recording 4711-304-20210110-095233-6-WENDLM.dcr, which has been certificated in Form 1.

January 10, 2024

(Date) (Signature of authorized person)

_________ Ontario, Canada________ ( Province of signing)

A certificate in Form 2 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.

Form 2 – Certificate of Transcript – September 1, 2022