ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-13266
DATE: October 9, 2015
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Paul Doucet
Applicant
John Semenoff, for the Respondent
Richard Auger, for the Applicant
HEARD: September 30, 2015
RULING ON APPLICATION FOR CERTIORARI
ABRAMS, J
Nature of the proceedings
[1] This is a matter that was brought before this Court for an order of prohibition with certiorari in aid seeking to have this Court quash the decision of Dorval J. refusing to order the sought after Intoxilyzer disclosure materials.
[2] The applicant is charged with operating a motor vehicle while his ability to do so was impaired by alcohol.
[3] On December 10, 2014, the applicant’s trial commenced before Dorval J. On that date the applicant argued a disclosure Charter motion, asserting that he was entitled to receive by way of disclosure certain materials relating to the historical maintenance and operation of the instrument used to obtain his breath samples.
[4] On January 26, 2015, Dorval J. dismissed the applicant’s disclosure application with reasons.
[5] On February 20, 2015, the applicant brought this application, which resulted in his trial being adjourned to November 2, 2015.
Issues
[6] The primary errors advanced by the applicant are essentially two-fold:
That the trial judge exceeded or lost jurisdiction by failing to conduct a proper, or any, Stinchcombe analysis, thus wrongly concluding that the sought after disclosure does not constitute First Party records, which ought to have been disclosed by the Crown; and
That the trial judge exceeded her jurisdiction and erred when she concluded that the sought after disclosure was Third Party records and that the applicant had not demonstrated that the materials sought were likely relevant.
Jurisdiction
[7] Parenthetically, but of significance is the fact that the issue of when this Court should be inclined or disinclined to exercise its discretion to grant the prerogative relief being requested in this case was argued before the Ontario Court of Appeal in March, 2015, with the Court of Appeal’s decision pending.
[8] There is no quarrel that at common law, certiorari and prohibition are discretionary remedies and this Court should generally decline to grant the remedy where there is an adequate appellate remedy. The Ontario of Appeal in R. v. Arcand, 2004 46648 (ON CA), [2004] OJ 5017 again re-emphasized this rule:
- At common law, certiorari and prohibition are discretionary remedies and the superior court should generally decline to grant the remedy where there is an adequate appellate remedy. As Doherty J.A. said in R. v. Duvivier (1991), 1991 7174 (ON CA), 64 C.C.C. (3d) 20 at 23-4 (Ont. C.A.),
The jurisdiction to grant the relief, either by way of prerogative writ or under s. 24(1) of the Charter, is discretionary. It is now firmly established that a court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. In such cases, it is incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by the Superior Court.
After referring to a number of cases supporting the proposition, Doherty J.A. continued as follows:
These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after the trial.
[9] The policy concerns militating against resort to the Superior Court for such relief during criminal proceedings include, inter alia: delay, the fragmentation of the criminal process, and unnecessary expenditure of judicial time and effort. Further, the Court in Arcand held that the limitation on intervention in on-going proceedings applies even where the accused or defendant claims that a ruling by the trial court has breached constitutional rights.
[10] Moreover, review on certiorari does not permit a reviewing court to overturn a decision of the inferior statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached, as McLachlin C.J. said in R. v. Russell [2001] 2 S.C.R. To that end, the Court of Appeal in Arcand said: not every erroneous ruling on an alleged Charter violation causes the trial court to lose jurisdiction. As was said by this court in Re Corbeil and the Queen (1986), 1986 4650 (ON CA), 27 C.C.C. (3d) 245 at 254 “only in special and exceptional circumstances can it be said that the denial of a constitutional right has resulted in a loss of jurisdiction so as to justify the extraordinary remedies of certiorari and prohibition”. The court described those circumstances as involving “a palpable infringement of a constitutional right that has taken place or is clearly threatened”.
The Evidence before the Motion’s Judge
[11] The only evidence before Dorval J. on the disclosure application was the viva voce evidence of Dr. Mayers and Sgt. Kiss, for the Crown, together with their affidavits and documents referred to in their evidence. Their evidence from an earlier proceeding in R. v. Van Bregt (with the same Crown counsel and defence counsel) was adopted into the Trial Record on consent. Both Dr. Mayers and Sergeant Kiss were subjected to cross-examination.
The Motion Judge’s Ruling
[12] In dismissing the applicant’s disclosure motion, Dorval J. provided, inter alia, the following reasons:
Although volumes of evidence were filed with respect to the ATC’s position and recommended standards and procedures, the evidence before the Court remains un-contradicted. Although the quality control and quality assurance measures are recommended, compliance or non-compliance with these recommendations does not lead to evidence of improper analysis of breath samples. The only data capable of showing the instruments malfunction, is the actual internal test data of the actual test.
The fact other toxicologists disagree is a factor for the Court to weigh in addressing Dr. Mayers’ evidence. Their evidence is not, however, before me. It was not tested by cross-examination. Other judges’ conclusions on evidence called before them is not a proper consideration on the case before me.
The issues, are the records sought first party or third party records, and secondly is the Crown or the Ottawa Police Service required to disclose the records. The issue on this application has now been litigated repeatedly in this jurisdiction and more widely across the country. Within this jurisdiction, the Certiorari application with respect to the decisions of R. v. Jackson and R. v. Mercer, have led to different results. The Jackson decision will be heard by the Ontario Court of Appeal in March.
I agree with Justice Legault in R. v. Matchett and Justice McLean in R. v. Mercer, that the decision of the Supreme Court of Canada in the (sic) R. v. Quesnelle has clarified the distinction between first party disclosure and third party disclosure. In light of R. v. Quesnelle, the prosecuting Crown must disclose all relevant information in its possession or control, except privileged information. Police are third parties. The Crown must make reasonable inquiries as to any material in the hands of the third parties which has potential relevance to the prosecution or the defence.
If records are sought from third parties, the application is determined following the two-staged test outlined in R. v. O’Connor, [1985] 4 S.C.R. 411. The first step requires the applicant to establish the likely relevance of the record. In the case before me, the evidence of Sergeant Kiss clearly sets out that the logs and maintenance records of the Intoxilyzer 8000C are not used by the investigative arm of the police. They are maintained in conformity with the recommendation of the ATC as part of their breath testing program. I find, therefore, that the records sought by the defendant constitute third party records.
As noted previously, the onus is therefore on the applicant defendant to establish that the records are likely relevant. My summary of the evidence led me to conclude that the only evidence before me is that the records are not relevant.
Analysis
[13] Given that this application is brought in the course of ongoing criminal proceedings, it is incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by this Court, as Doherty J. held in R. v. Duvivier, supra.
[14] The applicant contends that the immediate granting of the remedy in this case militates in favour of “court efficiency”. I reject this contention, for the following reasons. On the record before me, the case before Dorval J. appears to be a fairly straight forward “over .08” prosecution that could have been concluded within a day or days, at most. However, the trial has been delayed for almost a year to accommodate first the disclosure motion before Dorval J. and second the application to this Court. In my view, Doherty J. addressed this very concern in R. v. Duvivier, supra, where he referenced delay, the fragmentation of the criminal process, and unnecessary expenditure of judicial time and effort. Put simply, pursuit of the remedy sought in this application has not resulted in “court efficiency”.
[15] Further, review on certiorari does not permit this court to overturn the decision of the motions judge merely because she committed an error of law or reached a conclusion different from that which this court would have reached. Rather, the error must involve “a palpable infringement of a constitutional right that has taken place or is clearly threatened”. Query, how can it be seriously contended that Dorval J.’s decision amounted to a palpable infringement of a constitutional right in circumstances where there are two decisions of this Court in disagreement on this issue, with an appeal to the Ontario Court of Appeal and a decision under reserve? To that end, Dorval J. decided, for the reasons given, to follow, inter alia, the decision of McLean J. in R. v. Mercer, which I find she was entitled to do.
[16] With respect to the two decisions of this court in disagreement, the applicant contends that Johnston J.’s decision in R. v. Jackson was correctly decided and thus should have been followed by Dorval J. I reject this contention, for the following reasons. Firstly, Johnston J.’s decision was not binding on Dorval J. Secondly, Dorval J., having adverted to Johnston’s J.’s decision, was correct to point out: “Other judges’ conclusions on evidence called before them is not a proper consideration on the case before me”. Thirdly, the motions judge in R. v. Jackson had before him defence evidence that was not before Dorval J. Rather, the only evidence before Dorval J. on the disclosure application was the viva voce evidence of Dr. Mayers and Sergeant Kiss, who were both subjected to cross-examination, together with their evidence from an earlier proceeding in R. v. Van Bregt, which was adopted into the trial record on consent. When taken all together, Dorval J. found that the evidence before her was un-contradicted, which she was entitled to do.
[17] The applicant further asserts that Dorval J. wrongly found that the evidence before her was un-contradicted. Put another way, the applicant contends that by mere virtue of the fact that certain experts disagree, the evidence is thus not un-contradicted. I reject this contention, for the following reasons. Firstly, Dorval J. addressed the fact that experts disagree, where she said: “The fact other toxicologists disagree is a factor for the Court to weigh in addressing Dr. Mayers’ evidence [at trial]. Their evidence is not, however, before me. It was not tested by cross-examination.” Secondly, her finding did not result in an error causing her to exceed or lose her jurisdiction. Rather, her finding is supported by the view taken by other judges, in others courts, namely R. v. Sutton, 2013 ABPC 308, [2013] AJ No 1266 at para 163. It just so happens that this contrary view is not the one that the applicant asks this Court to adopt. Put simply, just because experts have disagreed in other proceedings does not equate to there being contradictory evidence before Dorval J. in this case.
[18] In all of the circumstances, I find the case before me to be factually closer to McLean J’s decision in R. v. Mercer, although McLean J. granted certiorari to quash the decision of the motions judge to release records in that case as First Party records. In reasons similar to those given by Dorval J., McLean J. found that:
Here we are dealing with a record that was before a provincial court judge. The record was, simply put, that the evidence before him was the fact that these records, in and of themselves, were not relevant or helpful. That was the state of the record with regard to the expert witness.
Clearly, the expert was fully cross-examined with regard to the other opinions or other views on this potentiality. However, there was nothing in that cross-examination that derogated from his opinion on these facts that the records themselves were not relevant….
With respect to the case of R. v. Jackson, which comes to a different conclusion, the court is aware that the case was decided before R. v. Quesnelle was released by the Supreme Court of Canada, and that R. v. Quesnelle may well have had an effect on the final judgment in that matter.
[19] I would also add that in R. v. Jackson, Johnston J. was dealing with one litigant, the Ottawa Police Service (OPS), that was not a party to the original motion, and thus the order made against it was a final order. Thus there was no adequate appellant remedy. I do not know the extent to which the absence of an adequate appellant remedy in respect of one of the litigants before Johnston J. factored into his discretion to grant the remedy as he did. However, in practical terms, the fact that one litigant had an adequate appellant remedy while the other litigant did not could reasonably militate in favour of the Court exercising its discretionary power.
[20] On the evidence before her, Dorval J. was entitled to find that the materials sought were not “likely relevant” as they were not probative of the accuracy of the subject tests or the operability of the instrument.
Conclusions
[21] For the reasons set out above, I would answer the questions raised in this application as follows:
(1) Dorval J. was entitled to find that the sought after disclosure did not constitute First Party records. In doing so, she committed no error that caused her to exceed or to lose jurisdiction.
(2) Dorval J. was entitled to find that that the sought after disclosure constituted Third Party records and that the applicant had not demonstrated that the materials were likely relevant. In doing so, she committed no error that caused her to exceed her jurisdiction.
(3) For the same reasons, I find that Dorval J. did not breach the applicant’s right to full answer and defence as the only evidence before her was that the records sought could not inform the Court as to whether the Intoxilyzer was functioning during the applicant’s breath test.
(4) Finally, in all of the circumstances, Dorval J. was entitled to find that R. v. St-Onge Larmoureux 2012 SCC, [2012] 3 SCR did not alter the disclosure obligations of the Police or the Crown.
(5) Accordingly, application dismissed.
The Honourable Mr. Justice B.W. Abrams
Released: October 9, 2015
COURT FILE NO.: 13-13266
DATE: October 9, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
– and –
Paul Doucet
Applicant
RULING ON APPLICATION FOR CERTIORARI
Abrams, J.
Released: October 9, 2015