CITATION: R. v. Ogiamien, 2015 ONSC 3720
COURT FILE NO.: 114/14
DATE: 20150615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jamil Osai Ogiamien
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and MAPLEHURST CORRECTIONAL COMPLEX and the ATTORNEY GENERAL OF CANADA
Respondents
-and-
Self-Represented
Mr. Whitehead and Ms. Evans, for the Ministry of Community Safety and Correctional Services and Maplehurst Correctional Complex
Ms. Guthrie and Mr. Dodokin, for the Attorney General of Canada
Legal Aid Ontario Applying to Quash Subpoenas
Stanley Jenkins, for Legal Aid Ontario
HEARD: June 1, 2015
REASONS FOR ORDER
Coats J.
NATURE OF APPLICATION
[1] On June 1, 2015, Legal Aid Ontario applied within the context of this habeas corpus application to quash two subpoenas issued by Jamil Osai Ogiamien (“Mr. Ogiamien”). Mr. Ogiamien is a self-represented inmate who is contesting the legality of his immigration detention. He has brought a habeas corpus application before this Court challenging the conditions of his detainment at provincial correctional facilities and has also argued that this Court should review the legality and other aspects of his immigration arrest and continued detention.
[2] Mr. Ogiamien has subpoenaed Laura Brittain and Andrew Brouwer so that they can give evidence in this habeas corpus hearing before the Court. The subpoenas require that Ms. Brittain and Mr. Brouwer give evidence surrounding Mr. Ogiamien’s “charges” and bring with them anything in their possession or control that relates to the charge. Mr. Ogiamien used a criminal subpoena and this explains the reference to a charge.
[3] Ms. Brittain and Mr. Brouwer are both employees of Legal Aid Ontario. All information that Ms. Brittain and Mr. Brouwer possess for which they are being called to testify is as a result of them acting within the scope of their employment at Legal Aid Ontario. On June 1, 2015, after hearing argument, I granted an order at the request of Legal Aid Ontario quashing the subpoenas and indicated written reasons would follow. These are the reasons.
ISSUE
[4] Should this Court quash the subpoenas issued by Mr. Ogiamien for the Legal Aid Ontario employees?
ANALYSIS AND EVIDENCE
[5] An employee of Legal Aid Ontario is not a compellable witness in respect of any information received by that employee while acting within the scope of their employment. The Legal Aid Services Act, 1998, S.O. 1998, c. 26 s. 88(1) creates a statutory immunity for employees who are being subpoenaed to testify about work they did while in the service of Legal Aid Ontario. Section 88 of the Legal Aid Services Act states:
- (1) Except with the consent of the Corporation, members of the board of directors, officers and employees of the Corporation, area directors and members of area committees are not compellable witnesses before a court or tribunal respecting any information or material furnished to or received by them while acting within the scope of their appointment or employment under this Act.
(2) If the Corporation is a party to a proceeding, the persons referred to in subsection (1) may be determined to be compellable witnesses.
(3) The Corporation and the persons referred to in subsection (1) are not required to produce, in a proceeding in which the Corporation is not a party, any information or material furnished, obtained, made or received in the performance of the Corporation’s or the person’s duties under this Act. 1998, c. 26, s. 88.
[6] Legal Aid Ontario has not consented to Ms. Brittain or Mr. Brouwer attending Court to give evidence for Mr. Ogaimien’s application.
[7] Pursuant to s. 88 (1) neither Ms. Brittain nor Ms. Brouwer are not compellable witnesses. Pursuant to s. 88 (3) neither are required to produce any information or material and therefore all documents requested are not producible.
[8] Justice Shamai in R v Gioris, [2007] O.J. No. 5864 quashed a subpoena issued for a Legal Aid Ontario employee based on section 88 (1).
CONCLUSION AND ORDER
[9] This Court ordered that the subpoenas issued by Mr Ogiamien for Ms. Brittain and Mr. Brouwer were quashed. I note that Legal Aid Ontario has provided to Mr. Ogiamien copies of documents and recordings from the files of Legal Aid relating to him, which he may choose to file with the Court if the material is relevant to this proceeding. Section 91 of the Legal Aid Services Act provides that documents signed on behalf of Legal Aid Ontario “shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in the document without proof of the signature or the position of the person appearing to have signed the document.”
Coats J.
Released: June 15, 2015
CITATION: R. v. Ogiamien, 2015 ONSC 3720
COURT FILE NO.: 114/14
DATE: 20150615
ONTARIO
SUPERIOR COURT OF JUSTICE
Jamil Osai Ogiamien
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and MAPLEHURST CORRECTIONAL COMPLEX and the ATTORNEY GENERAL OF CANADA
Respondents
– and –
Legal Aid Ontario
Applying to Quash
Subpoenas
REASONS FOR Order
Coats J.
Released: June 15, 2015