ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 130741/140129
DATE: 20150811
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JASON COMTOIS, ROBBIE DICKSON AND DWAYNE OUIMET
Applicants
Mark Seebaran, for the Crown
Julian N. Falconer and Marc E. Gibson for the Applicants
HEARD at Brockville: June 15, 2015
MARROCCO a.c.j.s.c.:
[1] The applicants move for an order in the nature of certiorari quashing the October 20, 2014 order of Justice R. Knott requiring the applicants to appear personally at their trial in Brockville, Ontario.
[2] The applicants, Robbie Dickson and Dwayne Ouimet, are partners operating as Tabac Arc-en-ciel S.E.N.C. Rainbow Tobacco G.P. (“Rainbow Tobacco”). The offices and manufacturing operations of Rainbow Tobacco are located on the Kahnawake Mohawk Territory outside of Montreal, Quebec.
[3] On May 8, 2013, the applicant, Jason Comtois, was stopped while operating a motor vehicle on Highway 401. He was allegedly transporting cigarettes manufactured on the Kahnawake Mohawk Territory by Rainbow Tobacco. Mr. Comtois was charged with possessing unstamped cigarettes contrary to section 32 (1) of the Excise Act, 2001, S.C. 2002, c. 22, and was released on a Promise to Appear.
[4] A short time later, the applicants, Dickson and Ouimet, were charged in separate information with selling, offering for sale or possessing unstamped cigarettes arising out of the same facts, as well as possessing an item resembling an excise stamp contrary to the Excise Act, 2001.
[5] The applicants and the Crown agreed that the two informations would be tried at the same time.
[6] The applicants claim these cigarettes were intended to be sold only on First Nation Reserves and only to First Nation people.
[7] In addition, the applicants, Dickson and Ouimet, are the subject of three sets of outstanding charges under the Tobacco Tax Act, R.S.O. 1990, c. T.10, as amended. These charges also concern the transportation of cigarettes and other tobacco products that were manufactured on the Kahnawake Mohawk Territory and intended for sale on First Nation Reserves to First Nation people.
[8] The applicants decided to put into issue the application of the Tobacco Tax Act to both themselves and their partnership. To that end, they applied for a declaration that they have an existing Aboriginal or treaty right to trade in tobacco, a right that exempts their tobacco trade from provincial taxes and restrictions.
[9] The applicants also challenge the constitutionality of section 216.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8. This provision empowers a police officer to require a driver to stop his or her commercial vehicle.
[10] The applicants also ask for an order excluding evidence obtained at the time of the arrest and warrantless search of Mr. Comtois and his vehicle on May 8, 2013. Counsel for the applicants had originally indicated that Mr. Comtois would testify on this application. However, on October 20, 2014, counsel for the applicants advised the trial judge that Mr. Comtois would not be called to testify.
[11] According to an earlier order of Justice Griffin, all constitutional arguments raised in the Brockville proceedings (other than those concerning the admissibility of the evidence obtained from the arrest and warrantless search) were to be scheduled and heard after the factual allegations had been decided.
[12] The trial of the factual allegations came before Knott J. on October 20, 2014. All of the applicants were represented by the same counsel. Counsel for the Federal Crown was present to prosecute the Excise Act, 2001 charges. Counsel for the Provincial Attorney General was present to represent the Provincial Crown with respect to the constitutional challenge to section 216.1 of the Highway Traffic Act.
[13] The trial judge noticed that the applicants were not present in the courtroom. Counsel for the applicants informed His Honour that the applicants had decided, pursuant to section 800 (2) of the Criminal Code, R.S.C. 1985, c. C‑46, to appear by counsel rather than in person. Counsel for the applicants also informed His Honour that it was an admitted fact that the applicants, Dickson and Ouimet, were the persons registered as partners in Rainbow Tobacco and that the other applicant, Comtois, was the person stopped by police on May 8, 2013.
[14] Counsel for the Federal Crown indicated that the Federal Crown did not consent to the applicants appearing by counsel. Counsel for the Provincial Attorney General was neither asked for, nor volunteered its position on the matter.
[15] The summary conviction offenses alleged in the information expose the defendants to a minimum fine or imprisonment for 18 months or both. The minimum fine is $0.17 per cigarette. The applicants are therefore exposed to a statutory minimum fine of $321,300.00 for the 1.89 million cigarettes that had been seized. At pretrial proceedings, the Federal Crown had indicated that a jail sentence was unlikely.
[16] After lengthy oral submissions from counsel for the applicants and counsel for the Federal Crown, His Honour made an interlocutory order requiring the applicants to attend for the arraignment, the procedural discussions expected to occur after the arraignment and the calling of evidence by the Crown.
[17] Certiorari is only available to attack jurisdictional errors in an interlocutory ruling: see Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93 (QL), at 99‑100; R. v. M.P.S., 2013 BCSC 1953, [2013] B.C.J. No. 2348, at para. 23. As a result, it is necessary to determine whether Knott J.’s interlocutory order resulted from a jurisdictional error. The use of certiorari to challenge interlocutory rulings is exceptional, because such challenges cause delay, and there is a possibility that the party aggrieved by the ruling may be successful at trial thereby rendering the unsatisfactory interlocutory ruling of no consequence: see R. v. Black 2011 ABCA 349, at para. 20. A similar line of reasoning is used to explain the limited scope of supervisory remedies available with respect to preliminary inquiries: see R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 19‑20. In addition, certiorari is a discretionary remedy, and so the Court may refuse to grant it when its use is inappropriate: Dubois v. The Queen, 1986 60 (SCC), [1986] 1 S.C.R. 366, [1986] S.C.J. No. 21, at 380‑82; R. v. Papadopoulos, 2005 8662 (ON CA), [2005] O.J. No. 1121, 201 C.C.C. (3d) 363 (C.A.), at para. 20.
[18] The applicants in their factum contend that an abuse of discretion can be a jurisdictional error. They rely on Lakeland College Faculty Association v. Lakeland College, 1998 ABCA 221, 162 D.L.R. (4th) 338, at para. 85. This decision has no application in the factual context with which we are concerned. In the Lakeland College decision, a librarian with the College was reclassified by the Board of Governors with the result that the librarian’s salary, benefits and vacation entitlement were reduced and the librarian lost her membership in the Lakeland College Faculty Association. The Colleges Act, R.S.A. 1980, c. C‑18 in Alberta vests in the Board of Governors of a college the power to designate individual employees or categories of employees as academic staff and to change those designations. However, the Colleges Act also provides that the Board of Governors can only change a designation after consulting with the affected employees. In the Lakeland College decision, the Court of Appeal of Alberta decided that there had been no consultation with the librarian, and that, as a result, the Board of Governors abused its discretion and acted without jurisdiction when it reclassified the librarian.
[19] There is no suggestion that the trial judge lost jurisdiction by failing to hear the applicants prior to making his order. Rather, the applicants argue that the trial judge abused his discretion by basing his decision on a pre-existing policy without individualized consideration of the case before him.
[20] It is clear from the transcript that the absence of the applicants was not anticipated. Both the Federal Crown and the trial judge had assumed that the defendants would personally appear at the trial, while counsel for the applicants had assumed that they would appear by counsel. Accordingly, the initial discussion concerning the applicants’ absence was confusing. Counsel for the Federal Crown thought that the applicants were required to appear in person; the trial judge thought that the applicants should attend in person to be arraigned and then request permission to be absent. However, within a short period of time, the trial judge’s attention was called to section 800 (2) of the Criminal Code, which provides as follows:
- (2) A defendant may appear personally or by counsel or agent but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.
[21] Three obvious observations should be made about section 800 (2): the power of the summary conviction court to order the applicants to appear personally is specifically provided for; the discretionary nature of this power; this discretion is broadly defined.
[22] During submissions, the trial judge offered the observation that he had never conducted a trial in the absence of the accused. His Honour also indicated that, at an earlier break in the proceedings, he had consulted with two senior judges who both indicated that they had never conducted a trial in the absence of the accused.
[23] While I am satisfied that the trial judge initially approached the issue on the basis that defendants were required as a matter of local practice to attend personally at their trials, I am satisfied by the time the trial judge was considering his ruling, he was approaching the matter correctly. Specifically, at the beginning of his ruling at p. 117 of the transcript, the trial judge makes the following statements:
• “Today, on the first day of trial the accused have exercised their right not to attend at the trial and appeared through counsel pursuant to section 800 (2) of the Criminal Code of Canada.”
• “It may be that the practice in this court of the accused attending personally for their trial is long-standing and that no one is given that assumption or requirement much thought. This court will review that practice to review if a practice direction with general guidelines needs to be issued. Though we must deal with this matter without any guidance from any practice direction.”
• “Counsel has indicated that he is properly instructed to enter a plea and to conduct the trial. There is no doubt or question concerning those assertions.”
[24] As well, in his ruling, the trial judge described the following considerations led him to conclude that the applicants should attend personally:
• The Ontario Court of Justice is a trial court and scheduling is a major difficulty.
• Requiring accused persons to attend the trial ensures the calling of evidence proceeds in an orderly fashion, and that the accused participates in decisions concerning the conduct of the trial.
• When accused persons do not attend, the court risks regular requests for adjournments so that counsel can get instructions.
• The applicants had moved to exclude evidence, and so they had the onus of proving that the exclusion was justified.
• Because a substantial portion of the time required to try the two matters would be taken up with legal argument, he could permit the applicants to appear by counsel during that time.
[25] These considerations amount to a combination of general considerations which, in His Honour’s view, militate in favour of the applicants appearing personally and considerations specific to the particular case before His Honour. As a result, I am not satisfied that His Honour made his decision without regard to the particulars of the case before him and thereby fettered his discretion to the extent that he made a jurisdictional error.
[26] The applicants argued before this court that the trial judge’s ruling amounted to an arbitrary detention and thereby infringed their right under section 9 of the Charter of Rights and Freedoms to be free from arbitrary detention. This argument was predicated upon the conclusion that the trial judge had applied a general local policy in ordering the applicants to personally appear without regard to the particulars of the case before him. Because I do not accept this premise, I am not persuaded that His Honour’s ruling amounts to the applicants being arbitrarily detained.
[27] Even if I had concluded that the trial judge abused his discretion and thereby committed a jurisdictional error, which I have not, I would have declined to quash his ruling.
[28] The trial judge ordered the applicants to attend for the arraignment. The arraignment consists of reading the charges to the applicants and asking them whether they plead guilty or not guilty: section 801 (1) of the Criminal Code. This is not a time-consuming exercise.
[29] The trial judge ordered the defendants to be present for what he described as procedural discussions expected to occur after the arraignment. While the trial judge was not specific about the nature of these discussions, it appears from the transcript that this would amount to confirming the applicants wish to appear by counsel and confirming those portions of the trial which required their personal appearance. Counsel for the applicants is a very experienced member of the bar. The trial judge was free to and did accept counsel’s statement that he had instructions to appear at trial for the applicants. Nevertheless, it was open to the trial judge to insist that the each applicant confirm to the court that he wished to appear by counsel. The court has an independent interest in ensuring that its proceedings are final and not effectively challenged on an inappropriate basis at a later date. There is no reason to believe that these procedural discussions would be a time-consuming exercise.
[30] The trial judge’s determination that the applicants appear in person during the calling of evidence by the Crown does not appear onerous. From the transcript and the order of Justice Griffin, it appears that the Crown’s evidence referenced by the trial judge was evidence concerning the actus reus of the offenses set out in the two informations and the Charter application to exclude evidence. The Crown was calling this evidence in circumstances where the applicants had admitted that the defendant, Comtois, was the driver of the vehicle on May 8, 2013 and that the defendants, Dickson and Ouimet, were the persons named as registered partners in Rainbow Tobacco. From the transcript it appears that the Crown and the applicants had agreed, prior to both October 20, 2014 and the applicants’ admissions, that it would take three days to hear the Crown’s evidence and the applicants’ application to exclude evidence. As a result, it seems reasonable to assume that the Crown’s evidence would be tendered within that period of time. All other arguments were to be scheduled after both the actus reus of the offenses and the application to exclude evidence had been decided.
[31] Requiring the applicants to appear in person at their own arraignment, procedural discussions after their arraignment and their own three day trial is not sufficient justification for quashing the trial judge’s ruling, even if it had resulted from a jurisdictional error.
[32] Accordingly, this application is dismissed.
MARROCCO a.c.j.s.c.
Released: 20150811
COURT FILE NO.: 130741/140129
DATE: 20150811
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JASON COMTOIS, ROBBIE DICKSON AND DWAYNE OUIMET
Applicants
REASONS FOR JUDGMENT
MARROCCO a.c.j.s.c.
Released: 20150811