ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 948/11
DATE: 20120622

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ALI AMIRI Appellant

S. Doyle, for the Respondent
Self-Represented

HEARD: June 18, 2012

[On appeal from the judgment of Currie, J.
dated February 15, 2011]

DECISION AS TO COSTS

MILLER, J.

[1] August 26, 2011 this Court heard an appeal of Ali Amiri who had been found guilty of refusing to provide a breath sample into an approved screening device on April 30, 2010. The appeal was granted on the basis that Mr. Amiri’s ability to make full answer and defence had been impaired by the fact Mr. Amiri had not been provided with a copy of the operating manual for the approved screening device that had been used in the investigation of him. A new trial was ordered.

[2] Mr. Amiri brought an application before Durno, J. January 20, 2012, seeking, amongst other things, an order for costs against the Crown in relation to the Crown’s failure to disclose the operating manual for the approved screening device. Durno, J. dismissed the application except in relation to the issues of costs which he indicated would properly be determined by this Court.

[3] Mr. Amiri today asks for costs against the Crown as a remedy pursuant to s.24 (1) of the Charter and further argues that this Court should enter a stay of proceedings.

Background

[4] Mr. Amiri was charged with refusing to comply with a demand to provide a sample into an approved screening device. There was no issue that the demand was a proper one. The Crown was relying on evidence from the investigating officer that Mr. Amiri had made several feigned attempts to provide a breath sample into an approved screening device.

[5] Mr. Amiri received initial disclosure on his first appearance date of May 13, 2010, when a trial date of January 28, 2011 was set. May 20, 2010 Mr. Amiri requested further disclosure of the calibration logs, the maintenance logs and the “breathalyser” manual for the screening device that had been used in his case.

[6] Initially the Crown did not respond to Mr. Amiri’s request for further disclosure. At the November 29, 2010 confirmation date the Crown took the position that the requested disclosure was not relevant.

[7] Mr. Amiri brought an application for disclosure. The application was to be heard January 14, 2011. The application was adjourned that day to be heard by the trial judge January 28, 2011. In its responding factum the Crown indicated that they were not in a position to provide the disclosure requested as the investigating officer had failed to note the serial number of the approved screening device used.

[8] On January 28, 2011, the trial date, the Crown provided Mr. Amiri with the calibration logs for the approved screening device, indicating they had been able to identify the device used with Mr. Amiri as the investigating officer had noted a number other than the serial number of the device which did identify which device had been used. The Crown took the position that the other disclosure requested by Mr. Amiri was irrelevant.

[9] The trial judge read the material filed by both parties and heard submissions on the application for disclosure. He granted the application in part, ordering the Crown to produce the maintenance records for the device in question. Mr. Amiri’s request for an adjournment was also granted in part, as the trial judge ordered that the trial commence, but Mr. Amiri was not called on to cross-examine the Crown’s first witness until after he had received the maintenance logs. The trial judge refused to grant Mr. Amiri’s application for disclosure of the operating manual for the approved screening device.

[10] The trial continued February 7, 2011. In the interim the Crown provided to Mr. Amiri copies of the maintenance log for the approved screening device. Mr. Amiri advised the Court that the material he received was missing some pages. The Crown advised they had provided all that was available. The Court made no further order for disclosure.

[11] Mr. Amiri testified that he had genuinely tried to provide proper samples into the approved screening device on April 30, 2010 but that the device kept “shutting off”. He also called evidence with respect to his pulmonary function as tested after he was charged.

[12] The trial judge did not believe Mr. Amiri’s evidence nor was he left with a reasonable doubt on the essential elements of the offence. Mr. Amiri was found guilty as charged.

[13] After hearing the appeal I found that the manual for the approved screening device, was, in the circumstances of this case, relevant to an issue at trial – specifically the proper working condition of the device used and its proper operation. I was also satisfied that Mr. Amiri had demonstrated that because of the reasonable possible uses of the non-disclosed evidence, there was a reasonable possibility that the outcome of the trial might have been affected. I found Mr. Amiri had met his onus of showing that his ability to make full answer and defence was impaired.

[14] A new trial was ordered.

Law

[15] The Supreme Court of Canada in R. v. Carosella 1997 , [1997] S.C.J. No. 12 at paragraph 48 recognized that “ Section 24(1) of the Charter confers upon the court a discretionary power to provide "such remedy as the court considers appropriate and just in the circumstances". See R. v. Simpson, 1995 , [1995] 1 S.C.R. 449 .”

[16] Mr. Amiri relies on the recognition in R. v. O’Connor 1995 , [1995] S.C.J. No. 98 at paragraph 73 :

there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

[17] Mr. Amiri also relies on the Supreme Court’s comment in Canada (Minister of Citizenship and Immigration) v. Tobiass 1997 , [1997] S.C.J. No. 82 at paragraphs 89-92 :

The residual category, it bears noting, is a small one. In the vast majority of cases, the concern will be about the fairness of the trial.

90 If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate. They are that:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice.

( O'Connor , supra, at para. 75 .)

91 The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O'Connor , at para. 82 . For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O'Connor , at para. 75 . The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well -- society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.

92 After considering these two requirements, the court may still find it necessary to consider a third factor. As L'Heureux-Dubé J. has written, "where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings": R. v. Conway, 1989 , [1989] 1 S.C.R. 1659 , at p. 1667 . We take this statement to mean that there may be instances in which it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits. This is not to say, of course, that something akin to an egregious act of misconduct could ever be overtaken by some passing public concern. Rather, it merely recognizes that in certain cases, where it is unclear whether the abuse is sufficient to warrant a stay, a compelling societal interest in having a full hearing could tip the scales in favour of proceeding.

[18] Mr. Amiri argues that the Crown’s conduct in this case falls into this residual category, damaging the integrity of the judicial system and that the prejudice caused to the accused would be perpetuated by allowing the matter to proceed. Mr. Amiri argues that if the matter is allowed to proceed the community would be left with the impression that the Crown could disregard any commitment or undertaking given to the accused or the court with impunity.

[19] In support of his argument Mr. Amiri relies on the agreed fact in the case on appeal that despite an order made by Dawson, J. May 15, 2011, Mr. Amiri was not provided with a copy of the manual by the Crown until July 17, 2011. Mr. Amiri points out that as a result he was unable to make reference to that document in his factum. I note, however, that he provided a copy of the manual to this Court and made reference to it in the course of oral argument on the appeal.

[20] Having considered the parameters of the residual discretion to be exercised by the court in circumstances where an individual’s s.7 Charter rights have been violated, I cannot conclude, in the circumstances of this case, that the state has conducted the prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system. The application for stay of proceedings based on the Crown’s conduct up to and including the appeal before me August 26, 2011, is dismissed.

[21] With respect to costs, I have considered the decision of the Supreme Court of Canada in R. v. 974649 Ontario Inc. 2001 SCC 81 with respect to awarding costs in criminal cases involving issues of disclosure:

Costs awards to discipline untimely disclosure are integrally connected to the function of the provincial offences court as a quasi-criminal trial court. Costs awards have a long history as a traditional criminal law remedy. Although sparingly used prior to the advent of the Charter, superior courts have always possessed the inherent jurisdiction to award costs against the Crown: R. v. Ouellette, 1980 , [1980] 1 S.C.R. 568 ; R. v. Pawlowski (1993), 12 O.R. (3d) 709 (C.A.) , at p. 712 . In recent years, costs awards have attained more prominence as an effective remedy in criminal cases; in particular, they have assumed a vital role in enforcing the standards of disclosure established by this Court in R. v. Stinchcombe, 1991 , [1991] 3 S.C.R. 326 . See , for example: Pawlowski , supra; Pang, supra; R. v. Regan (1999), 137 C.C.C. (3d) 449 (N.S.C.A.) .

Such awards, while not without a compensatory element, are integrally connected to the court's control of its trial process, and intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure. (At paragraphs 80-81)

[22] McLachlin, C.J.C. noted, at paragraph 87, that, “ Crown counsel is not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion. Rather, the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution.”

[23] In the circumstances here, while I determined that Mr. Amiri’s ability to make full answer and defence had been compromised by the failure to disclose the operating manual of the approved screening device, I also note that the issue was raised before the trial judge who heard arguments from both the Crown and Mr. Amiri and determined, albeit, mistakenly, as I found, that disclosure of the operating manual was not required.

[24] In these circumstances, I cannot find that the Crown’s conduct in this case amounted to a flagrant and unjustified incident of non-disclosure, or a marked and unacceptable departure from the reasonable standards expected of the prosecution. I do not find that costs, in the circumstances of this case, are a necessary means to enforcing the standards of disclosure. In my view, that message was sent when Mr. Amiri was granted the remedy of a new trial.

[25] The application for costs is dismissed.

MILLER J.

Released: June 22, 2012