COURT FILE NO.: CR-14-265-0000
DATE: 2015-12-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Michael Martin, counsel for the Crown
- and -
J.C. and B.P.
Elizabeth Barefoot, counsel for B.P. and Elizabeth Barefoot, agent for Esra Samli, counsel for J.C.
HEARD: December 9, 2015
REASONS FOR DECISION
CROWN’S APPLICATION TO DISMISS DEFENCE PRETRIAL APPLICATIONS REGARDING A STAY OF PROCEEDINGS AND THIRD PARTY RECORDS
Conlan J.
I. Introduction
[1] Mr. J.C. and Ms. B.P. stand charged on an Indictment that alleges the following eight offences.
HER MAJESTY THE QUEEN PRESENTS THAT J.C. and B.P. between the 1st day of January 2014 and the 29th day of March 2014, at the Township of Chatsworth, Central West Region, did commit an assault on D.M., contrary to section 266 of the Criminal Code of Canada.
AND FURTHER, THAT J.C., between the 1st day of August 2013 and the 30th day of September 2013, at the Township of Chatsworth, Central West Region, did in committing an assault on D.M., use a weapon, to wit: a wooden type kitchen utensil, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT J.C., between the 1st day of August 2013 and the 30th day of September 2013, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a wooden type kitchen utensil, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT J.C., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.M., use a weapon, to wit: a wooden type kitchen utensil, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.M., use a weapon, to wit: a black leather belt, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a black leather belt, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April, 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a mustard bottle, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a wooden spoon, contrary to section 267(a) of the Criminal Code of Canada.
[2] On December 9, 2015, in Owen Sound, the accused were arraigned and entered pleas of not guilty to all of the charges.
[3] The Indictment indicates on its face that the accused have elected to be tried by a Court composed of a judge and jury. On May 4, 2015, however, I endorsed on the Indictment that the accused intended to re-elect their mode of trial to a Superior Court Judge, sitting alone, with the Crown’s consent. It is not clear to me from a review of the subsequent Endorsements whether the accused have formally re-elected as anticipated. That needs to be addressed by counsel when the case returns to Court before me next week.
[4] December 14, 15 and 16, 2015 have been set aside to hear the Defence pretrial Applications. There are two of them that have been filed on behalf of both accused persons, jointly. The first alleges a breach of the accused persons’ section 8 Charter rights to be free from unreasonable search or seizure, with the remedy sought being a stay of proceedings pursuant to subsection 24(1) of the Charter or, alternatively, a reduction in sentence in the event that one or both accused is found guilty of one or more of the charges. The second requests disclosure of third party records in the possession of Bruce Grey Child and Family Services (“BGCFS”).
[5] On December 9, 2015, I heard an Application by the Crown to dismiss the Defence Applications, particularly the stay Application. In addition to the filings, I heard submissions and received documentary evidence on behalf of the Crown, represented by Mr. Martin, J.C., represented by Ms. Barefoot as agent for Ms. Samli who is counsel for J.C., and B.P., represented by Ms. Barefoot.
[6] In short, the Crown alleges that the Defence stay Application ought to be dismissed on the basis that it does not comply with the Rules in that there is no substantial ground put forward for the relief sought and/or it is frivolous and can be dismissed without a full hearing. The Crown alleges that the Defence third party records Application ought to be dismissed, in whole or in part, on the basis that it has not been properly perfected in that interested parties have not been served by the Defence.
II. The Guiding Principles in the Rules and in the Jurisprudence
The Rules
[7] Reference must be made to the Criminal Proceedings Rules for the Superior Court of Justice (“Rules”), specifically Rules 6 and 27.
The Stay Application
[8] By virtue of subrule 27.01(c), Rule 27 applies to the Defence stay Application.
[9] Rule 27.03 outlines what must (not should, but shall) be stated in the Notice of Application and Constitutional Issue (Form 5). The mandatory requirements include but are not limited to the precise relief sought (paragraph b), the grounds to be argued (paragraph c) and the documentary, affidavit and other evidence relied upon (paragraph d).
[10] For the Defence stay Application, an Application Record is required: subrule 27.05(1). That Application Record shall comply with subrule 6.05(2); it shall contain a table of contents, the Notice of Application, a copy of the Indictment, copies of all affidavits and other material to be relied upon, a list of all relevant transcripts, and copies of any other material in the Court file that is necessary to properly adjudicate the matter.
[11] For the Defence stay Application, Facta and Books of Authorities are required: subrules (7) and (8) of Rule 27.05.
[12] Rule 27.07 incorporates Rules 6.07, 6.08 and 6.09, all related to evidence. Rule 6.07 relates to affidavit evidence. Rule 6.08 relates to, with leave, the right to examine and cross-examine witnesses. Rule 6.09 relates to agreed statements of fact.
[13] Rule 27.09 incorporates Rule 6.11. Subrule 6.11(2) provides as follows:
(2) Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.
[14] Thus, my authority to dismiss, summarily, the Defence stay Application is grounded in subrule 6.11(2).
The Third Party Records Application
[15] By virtue of subrule 6.01(2), Rule 6 applies to the Defence third party records Application.
[16] Rule 6.03 outlines what must (not should, but shall) be stated in the Notice of Application (Form 1). The mandatory requirements include but are not limited to the precise relief sought (paragraph b), the grounds to be argued (paragraph c) and the documentary, affidavit and other evidence relied upon (paragraph d).
[17] For the Defence third party records Application, an Application Record is required: subrule 6.05(1). That Application Record shall comply with subrule 6.05(2); it shall contain a table of contents, the Notice of Application, a copy of the Indictment, copies of all affidavits and other material to be relied upon, a list of all relevant transcripts, and copies of any other material in the Court file that is necessary to properly adjudicate the matter.
[18] For the Defence third party records Application, Facta are not required (unless ordered by a judge), and Books of Authorities are required: subrules (7) and (8) of Rule 6.05.
[19] Evidence on the Defence third party records Application is governed by Rules 6.07 through 6.09. Rule 6.07 relates to affidavit evidence. Rule 6.08 relates to, with leave, the right to examine and cross-examine witnesses. Rule 6.09 relates to agreed statements of fact.
[20] My authority to dismiss, summarily, the Defence third party records Application is found in subrule 6.11(2), quoted above.
The Jurisprudence
[21] We do not have Criminal Proceedings Rules simply for the sake of annoying criminal practitioners. They are designed to achieve what may be labelled as three main objectives: (i) to ensure fairness to both the prosecution and the defence, (ii) to facilitate the timely and orderly hearing and adjudication of pretrial applications and trials, and (iii) to promote a sense of what I choose to refer to as “litigator’s responsibility” – the professional duty to help narrow the issues, where feasible, and see the forest through the trees.
[22] For a much more detailed summary of the rationale for the Rules, I commend to any reader the decision of Justice Hill in R. v. Tash, 2008 1541 (ON SC), 2008 CarswellOnt 245 (S.C.J.), starting at paragraph 15.
[23] Where the Rules are not complied with, the Court has the discretion to dismiss the application or make some other order which is less drastic but which is designed to cure or at least ameliorate the non-compliance. R. v. Dumont (2000), 2000 16861 (ON CA), 149 C.C.C. (3d) 568 (Ont. C.A.), at pages 570-571.
[24] The power of a Court to dismiss an application summarily under subrule 6.11(2) requires that two things be satisfied: (i) that the application is frivolous or vexatious, and (ii) that the application can be determined without a full hearing.
[25] A frivolous application is one that is lacking in seriousness.
[26] It is one that, based on the record before the presiding judge, has no reasonable prospect of success, even assuming that the applicant establishes the allegations being made. R. v. Ahmad, [2008] O.J. No. 5920 (S.C.J.), at paragraph 12.
[27] A vexatious application is one that is moot, or redundant, or one that is meant more to stall the proceeding and/or annoy the other side than anything else.
[28] Where it is determined by a judge that, even taking the application at its very highest and assuming that all of the factual allegations are established by the applicant, the remedy sought would clearly not be granted, that is the very definition of a circumstance where a full hearing is not required. The application ought to be dismissed summarily.
III. The Test for a Stay of Proceedings
[29] A stay of proceedings under subsection 24(1) of the Charter is a prospective remedy. It is reserved for the clearest of cases. R. v. Regan (2002) 2002 SCC 12, 161 C.C.C. (3d) 97 (S.C.C.). I set out here paragraphs 54 and 55 of that decision.
[54] Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:
(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, at para. 75]
The Court’s judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. 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.
[55] As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O’Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91).
IV. Analysis
The Defence Third Party Records Application
[30] Clearly, the Defence has not served all of the parties who can reasonably be assumed to have privacy interests in the records being sought.
[31] The Defence has conceded that it has not served K.C., the foster parents P. and S., and the relief foster parents M. and her unknown spouse.
[32] Thus, I could dismiss the Defence third party records Application on the basis that it has not been properly served.
[33] I will not do so, however, for three reasons. First and foremost, Mr. Hutton, counsel for BGCFS, has kindly agreed to have the foster parents and the relief foster parents served. The Defence owes a debt of gratitude to Mr. Hutton and his client for that kind undertaking. Second, from what I have heard thus far, it appears unlikely that any of the interested parties will choose to participate in the Application. Third, the Defence has generally complied with Rule 6.
[34] The Defence third party records Application will proceed to a hearing commencing on December 14, 2015 at 10:00 a.m., as previously scheduled. It will continue, if necessary, on December 15 and 16.
[35] As agreed to by all parties, BGCFS, which entity is not opposing the Application at the first stage (whether the Court ought to review the records in question), shall deposit with the Court in a sealed envelope the un-redacted records being sought by the Defence.
[36] That leaves the issue of the Defence request to substitute, at page 2 of its Notice of Application, “M. and unknown spouse” with a different first name and her unknown spouse. The only reason why the Defence is even in a position to make that request is because Mr. Hutton advised the Court on December 9, 2015 that the Defence Application materials state the first name of the relief foster mother as “M.” (the full first name is given on page 2 of the Notice of Application), but there is no relief foster mother of that first name. Mr. Hutton thinks that he knows who is being referred to – a lady whose first name is different but also starts with the letter “M”.
[37] The Defence request for the said amendment is denied. This is not a fishing expedition, even at the first stage. Although the accused are not charged with an offence listed in paragraph 278.2(1)(a) of the Criminal Code, at common law, to obtain third party records the Applicants must show likely relevance to an issue at trial.
[38] All that I have is the following bald assertion at subparagraph 7(d) of the affidavit sworn by Ms. Barefoot’s law clerk (page 3 of tab 2 of the Application Record):
7(d) Since the allegations currently before the Court were brought to the attention of the police, both children have subsequently also made allegations between May 2014 and July 2014 against their relief foster parents (one of which is named [M.]) that involved hitting them with hands, belts, and spoons which the BGCFS have also determined to be unfounded.
[39] According to Mr. Hutton, whose information I readily accept, there is no lady of that name involved with this family as a relief foster mother. Perhaps the Defence is referring to another lady. Perhaps not. Perhaps that other lady is the person identified by Mr. Hutton at Court on December 9. Perhaps not. In any event, what is the source of the information at subparagraph 7(d) of the law clerk’s affidavit? Apparently, the source is B.P., one of the accused. Why is there nothing from B.P.? Why is there nothing to tell me how B.P. knows that?
[40] The Defence is clinging to something revealed at Court by Mr. Hutton and saying, essentially, that is who is meant at page 2 of its Notice of Application and, further, the alleged fact that B.P. told a law clerk that the children said to someone that they were physically abused by a woman incorrectly named as “M.” is sufficient to have the Court review all of the records in the possession of BGCFS related to the lady named at Court by Mr. Hutton.
[41] With respect, that is not sufficient.
[42] The Defence third party records Application shall proceed to a hearing but not with regard to any records related to K.C. (because she was not served, and the Defence agrees to her name being struck from the relief sought at page 2 of the Notice of Application) and not regarding any records related to the relief foster parents.
[43] The Application shall proceed regarding records in the possession of BGCFS with respect to allegations of physical abuse against the two children or either of them by the accused, R.P. (because I accept that Ms. Barefoot has spoken to him about the Application, and he has no interest in participating) and the foster parents P. and S. (because they are being served by BGCFS).
The Defence Stay Application
[44] Despite the able submissions advanced by Ms. Barefoot, I find that this is a frivolous Application which does not require a full hearing and which must be dismissed, summarily, at this stage. So ordered, pursuant to subrule 6.11(2).
[45] In the circumstances, it is not necessary for me to decide whether the Application ought to be dismissed for non-compliance with the Rules.
[46] In short, the Application stands no chance of success, never mind a reasonable prospect of success.
[47] At its very highest, accepting everything alleged by the Applicants, the facts are as follows.
[48] First, after the accused persons were arrested, police officers attended on the property of the accused.
[49] Second, without a warrant, Officer Coghlin (“Coghlin”) of the Ontario Provincial Police attended at the property, without a warrant, to stand-by while a worker from BGCFS removed the male complainant, the son of the accused, from the home.
[50] Third, Coghlin remained on the property, without a warrant, for 27 minutes after the worker and the boy left.
[51] Fourth, Coghlin later returned to the property, without a warrant, and placed a seal on the door of the home.
[52] Fifth, an unknown female officer subsequently attended at the property, without a warrant, and stayed there for over five minutes.
[53] Sixth, Officer Cliff (“Cliff”) of the Ontario Provincial Police attended at the property, without a warrant, and stood-by while a tenant removed his personal belongings from the home.
[54] Seventh, when the accused returned home from the police station later that evening on May 3, 2014, the seal on the front door of the home was broken. The Court is asked to infer that a police officer broke the seal and entered the home, without a warrant.
[55] Finally, some or all of these attendances by the police on the property were not disclosed to the Crown or to the Defence. They were deliberately concealed by the police in an effort to cover-up their misdeeds.
[56] Assuming all of the above to be true, which is highly debatable, a stay of proceedings could not possibly be granted.
[57] There is no prejudice caused by the alleged abuse in question that will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome.
[58] Further, this is not one of those very rare cases where the alleged past misconduct is so egregious that the mere notion of going forward with the prosecution in light of that misconduct would be offensive.
[59] The Defence makes no complaint about Coghlin attending the property with the BGCFS worker in order to retrieve the child. So the mischief related to that attendance boils down to Coghlin staying outside of the home but on the property for 27 minutes after the child and the worker departed. There is no evidence that Coghlin entered the home, searched the property, seized anything or investigated anything during those 27 minutes. He was simply there, outside of the home.
[60] The Defence complains about Coghlin going back to the property to place a seal on the front door. Really? That is routinely done by the police, pending an authorized search of the residence. The visit was extremely brief. The home was not entered. Nothing was seized. Nothing was investigated.
[61] The Defence complains about the unknown female officer attending at the property for over five minutes. Assuming that she entered the home, which assumption is debatable and depends on an inference being drawn that she caused the break in the seal allegedly observed by B.P. when she got home later that evening, then it may be that a violation of the accused persons’ section 8 Charter rights is established. But to stay the proceedings based on that, whether alone or together with the 27-minute stay on the property by Coghlin and his re-attendance to seal the front door of the home, would be, with respect, absurd.
[62] The Defence takes no issue with Cliff’s attendance at the property.
[63] The Defence submits that I ought to be cautious about dismissing the Application without a full hearing. I agree that accused persons ought not to be deprived lightly of a full Charter hearing. The test under subrule 6.11(2) must be strictly applied. I have done so. The test has clearly been met in this case. I am certain that the stay Application stands no reasonable chance of success. That certainty is in the face of the evidence taken in the most favourable light possible for the accused.
[64] As for the alleged deliberate non-disclosure, that is largely no longer an issue. The Defence now has disclosure of these police attendances on the property, except for the notes of Cliff (who is on leave). Late disclosure is regrettable but cannot, in these circumstances, lead to a stay of proceedings of very serious criminal offences involving the children of the accused as the complainants.
[65] Regarding the alternative relief sought of a reduced sentence in the event that one or both of the accused persons is/are found guilty of one or more of the charges, we need not deal with that request at this time. The Defence may raise that if and when a finding of guilt is made.
[66] With all due respect for the Defence, what this is all about is an attempt to get a remedy when subsection 24(2) of the Charter cannot be invoked because nothing was seized during these alleged warrantless searches of the property.
[67] At trial, the Defence is free to explore the issue of whether something was indeed seized. If so, then the Defence may raise at that time the prospect of embarking upon a voir dire regarding sections 8 and 24(2) of the Charter.
[68] An accused person cannot come to Court and essentially plead for a stay of proceedings because a remedy under subsection 24(2) is not available.
V. Conclusion
[69] For all of these reasons, the Crown’s request to summarily dismiss the Defence stay Application is granted.
[70] The Defence third party records Application shall proceed as directed above.
[71] In addition to the counsel who were in Court on December 9, 2015 (Mr. Martin and Ms. Barefoot), Ms. Samli and Mr. Hutton shall be provided with copies of these Reasons.
Conlan J.
Released: December 10, 2015
COURT FILE NO.: CR-14-265-0000
DATE: 2015-12-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
J.C. and B.P.
Applicants
REASONS FOR DECISION
CROWN’S APPLICATION TO DISMISS DEFENCE PRETRIAL APPLICATIONS REGARDING A STAY OF PROCEEDINGS AND THIRD PARTY RECORDS
Conlan J.
Released: December 10, 2015```