Court File and Parties

CITATION: 2015 ONSC 1954

COURT FILE NO.: 4636/14

DATE: 2015-03-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ruth Anne Finlayson

BEFORE: Mr Justice Ramsay

COUNSEL: Mr M. Wendl for the applicant; Mr Christopher Bundy for the Crown

HEARD: 2015-03-25

Endorsement

[1] The applicant is co-accused with several others in an indictment that charges her co-accused with a drug conspiracy and charges her with attempting to obstruct justice by lying to a parole officer about the residence of her brother, one of the co-accused. The applicant moves for certiorari to quash her committal for trial by Mr Justice Zuraw and mandamus to compel him to re-open the preliminary inquiry with directions:

a. To permit the applicant under s.540(1)(a) of the Criminal Code to cross-examine the affiant of an information to obtain authorization to intercept private communications; and

b. To allow her to move under s.540 (9) of the Code for an order that two witnesses, the parole officer and the officer in charge of the case, be produced for cross-examination, and to decide that motion.

Cross-examination of the affiant

[2] During the first stage of the preliminary inquiry, the applicant was represented by counsel. Through him, she sought to cross-examine the affiant of the wiretap authorization. It was submitted on her behalf that the case law, notably R. v. Dawson, 1998 ONCA 1010, [1998] O.J. No. 1039 (CA), did not require that leave be given and that in order to make full answer and defence she had the right to cross-examine if the proposed cross-examination did not breach any privilege and it could be relevant to her defence, including any application to quash the authorization or exclude evidence obtained through its execution.

[3] In a considered and thorough oral ruling, the judge refused to allow the cross-examination for two reasons:

a. No basis for cross-examination had been made out as that term is understood in Dawson and R. v. Pires; R. v. Lising, 2005 SCC 66; and

b. While discovery is a primary purpose of the preliminary inquiry, the ends of discovery did not justify the proposed cross-examination on the case before him.

[4] In Dawson, the appellant sought to cross examine affiants for wiretaps at the preliminary inquiry. The justice conducting the inquiry held that cross-examination was not justified. The appellant argued that s.540 of the Criminal Code gave him the absolute right to cross-examine the affiants. The reviewing judge of the superior court held that it did not. At the Court of Appeal, the Crown went farther and argued that such cross-examination could only be permitted by the trial judge. The Court of Appeal held as follows:

a. R. v. Garafoli, 1990 SCC 52, [1990] 2 SCR 1421 set the procedure for cross-examination of the affiant at trial, but it did not exclude such examination at the preliminary inquiry.

b. The discovery aspect of a preliminary inquiry is not diminished by R. v. Stinchcombe, 1991 SCC 45, [1991] 3 SCR 326.

c. At the preliminary inquiry, there is no absolute right to cross-examine the affiant of a judicial authorization. The judge must be satisfied that cross-examination is necessary to enable the accused to make full answer and defence. Relevance, materiality and prolixity will be guiding factors and if beyond their limits, given the context of the proposed defence, then the questions will not meet the Garafoli test. If the questions are beyond those limits they will properly be excluded from the right to cross-examine afforded by s.540 (1) (a).

d. If the judge applies the Garafoli test, he has not exceeded his jurisdiction and his decision is not reviewable.

[5] Mr Wendl argues that relevance at the preliminary inquiry should be interpreted more broadly than relevance at trial because one important purpose of the inquiry is discovery. I do not accept that this proposition would lead to a lower threshold at the preliminary inquiry than at trial for leave to cross-examine an affiant for a judicial authorization. In Dawson, Carthy J.A. expressed scepticism at the notion that cross-examination that required leave at trial should not require leave at the preliminary inquiry. I take it that the notion that the right to cross-examine an affiant at a preliminary inquiry is broader than the right to cross-examine at trial is also a doubtful proposition.

[6] Carthy J.A. said this at paragraph 19 of Dawson, in the context of explaining why cross-examination at the preliminary inquiry is not excluded:

My conclusion is that, given the 1993 amendments to s. 187 of the Code, there is no reason that the granting of leave to cross-examine should be the preserve of the trial judge. Why should legitimate discovery be delayed? Why should a provincial court judge not be permitted to apply a very simple test to assure against prolixity, irrelevance, and well-known policy concerns? I can see none and s. 540(1)(a) is a strong directive to that end. This should not be considered as a usurpation of the trial judge's function. Cross-examination will disclose facts to the accused, but they will only become admissible at trial by leave of the trial judge.

[7] In my view, the "very simple test" to which Carthy J.A. referred is the test in Garofoli and it is the only test to be applied by the justice who conducts the preliminary inquiry in deciding whether to permit cross-examination of the affiant for a judicial authorization.

[8] The judge did not give a blanket denial to cross-examination of the affiant. He rejected the application because the accused did not meet the criteria in Garofoli. The judge therefore acted within his jurisdiction and his decision is not subject to review.

The s.540 (9) question

[9] Between appearances at the preliminary inquiry, the applicant's lawyer (not Mr Wendl) was suspended from practice. The applicant thereafter represented herself. She did not ask for an adjournment to retain counsel. She did not apply for counsel to be appointed. She did not ask to cross-examine the parole officer and the officer in charge. No request was presented to the judge under s.540 (9) and he gave no decision on that subject.

[10] It is submitted that the judge exceeded his jurisdiction by failing to offer the unrepresented accused the help she needed in conducting the inquiry. The record does not justify such a finding.

[11] On April 3, 2014, the judge heard submissions from the applicant's counsel on the cross-examination of the affiant. On April 15, 2014 the judge denied leave to cross-examine. On June 26, 2014 the inquiry resumed, the applicant representing herself. The Crown moved under s.540 (7) of the Code for the admission of hearsay evidence, to wit: transcripts of the intercepted communications. On July 11, 2014 the judge ruled that the hearsay evidence was admissible. On October 16, 2014, counsel for the represented accused conceded that there was sufficient evidence for committal. The judge then addressed the applicant:

THE COURT: Ms. Finlayson, did you wish to call any evidence or make any submissions? Do you want to hear from the Crown? I don't wish to unduly delay matters, but on the other hand, I do not wish in any way to cause you any grief will respect to your rights. ...

RUTH ANN FINLAYSON: Sure. Yes, I want to not delay the proceedings any longer.

THE COURT: Are you satisfied, then that you can be committed for trial without the necessity of the taking or recording of any other evidence or without the benefit of submissions?

RUTH ANNE FINLAYSON: Yes, Your Honour.

[12] The accused were thereupon committed for trial.

[13] By that point, the judge was aware that the applicant had personally taken steps to challenge his decision on cross-examination of the affiant by way of mandamus. He had no reason to think that she had any other concerns or that she was incapable of expressing her views or standing up for her rights. He mentioned to her specifically that she could call evidence and make submissions and she declined to do so. In the circumstances no more was required. If she wanted to hear from the parole officer and the officer in charge, that was the time to say so.

[14] There was no denial of natural justice and no excess of jurisdiction.

Conclusion

[15] The application is dismissed.

[15]

J.A. Ramsay J.

Date: 2015-03-26