R. v. Ellis, 2016 ONSC 2176
CITATION: R. v. Ellis, 2016 ONSC 2176
COURT FILE NO.: 14-50000187 13-50000809 13-50000218
DATE: 20160406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
SIOBHAN ELLIS Applicant
Andrea MacGillivray, for the Respondent
Joel Hechter, for the Applicant
HEARD: March 17, 2016
McWatt J.:
Ruling On Constitutional Challenge
(Re: Sections 674 of the Criminal Code, 7, 11(h), and 24(1) of the Canadian Charter of Rights and Freedoms and Section 52(1) of the Constitution Act, 1982)
History of the Litigation
[1] The applicant was accused of several offences as a result of the seizure of items, including a loaded handgun and a box of ammunition, found concealed within apartment 611 - 7820 McLaughlin Road, in Brampton, during the execution of a search warrant at that address.
[2] The applicant and her male co-accused were tried by a jury before the Honorable Justice Brian O’Marra in March of 2014. On March 21, 2014, after the close of the Crown’s case, Ms. Ellis sought a directed verdict. That application was dismissed except with respect to one count of Weapons Dangerous for which she and her co-accused were acquitted. The two then called no evidence and the rest of the case (Possession Loaded Restricted Firearm; Possession of Firearm with no License or Registration; and Careless Storage of Firearm ) was left with the jury. After deliberating for two days, the jury was unable to reach a verdict with respect to the charges against the applicant, but her co-accused was convicted on all counts. O’Marra J. declared a mistrial in Ms. Ellis’ case.
[3] The Crown subsequently decided to re-prosecute Ms. Ellis.
[4] Between the first trial and the second scheduled trial, and because she was statutorily barred from appealing the dismissal of her directed verdict application to the Ontario Court of Appeal, the applicant sought leave to appeal directly to the Supreme Court of Canada on the issue, pursuant to s. 40 of the Supreme Court Act.
[5] Her application was dismissed without reasons on November 13, 2014. In its responding material on the leave application, the provincial Crown argued that the proper recourse for the applicant’s complaint, about no route of appeal for O’Marra J.’s dismissal of the directed verdict application, would be for the applicant to seek a stay of proceedings for abuse of process at the start of her second trial and, if denied the stay and ultimately convicted at that second trial, to appeal to the Court of Appeal for Ontario in accordance with s. 675 of the Criminal Code.
[6] On September 18, 2015 the matter was brought forward on consent and the Crown withdrew all the charges against the applicant on the basis that it was not in the public interest to continue with the process.
[7] There has been no allegation that the withdrawal of the charges was in any way improper or an abuse of the Crown’s discretion.
The Constitutional Challenge
[8] The Applicant maintains that her application for a directed verdict was wrongly dismissed and that she is entitled to an acquittal on these charges. She is, however, statutorily barred from appealing the dismissal to the Ontario Court of Appeal, by Part XXI of the Criminal Code.
[9] In the circumstances, the Crown’s decision to re-prosecute her violated her rights, under ss. 7 and 11(h) of the Charter, not to be tried a second time when she was entitled to an acquittal at the end of her first trial. The scheme which bars an appeal in this case is arbitrary and overbroad, and inconsistent with the principles of fundamental justice.
[10] Section 1 of the Charter cannot be relied upon to save the impugned statutory scheme. The scheme’s objective is not sufficiently pressing and substantial to justify overriding the constitutionally protected right not to be subjected to repeated prosecution after an individual should have been acquitted on the Shephard test at trial; the scheme as currently drafted is not rationally connected to the objective; the scheme is not minimally impairing; and the Oakes/Dagenais proportionality tests are not met.
[11] The Applicant’s Constitutional Questions are:
(i) Does the legislative scheme set out in Part XXI of the Criminal Code violate section 7 of the Charter by virtue of over breadth or arbitrariness?
(ii) Is the legislative scheme set out in Part XXI of the Criminal Code inconsistent with a purposive interpretation of s. 11(h) of the Charter?
(iii) If either of the preceding questions is answered in the affirmative, can the legislative scheme set out in Part XXI of the Criminal Code be saved under section 1 of the Charter?
[12] The applicant maintains that, given the nature of the questions involved, it is not necessary to review the evidence or directed verdict ruling on this Application. I agree.
Analysis
i. Jurisdiction to Hear the Application
[13] The Crown asked that I apply Rule 6.11(2) of the Rules of the Superior Court of Justice which sets out that:
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] The Crown maintains that, given that the criminal charges have been withdrawn and there is no allegation of improper behavior or abuse of power by the Crown, there is no remedy for this court to provide. Further, there is no active indictment before the court upon which to rule.
[15] I did not dismiss the application summarily, but did listen the submissions of the parties. Nonetheless, I agree with the Crown’s position that I do not have the jurisdiction to hold a “freestanding hearing” as described by the Ontario Court of Appeal in R. v. Fach, [2004] OJ No. 4637 paras 2-3.
[16] In Fach, charges against the respondent had been withdrawn by the Crown prior to arraignment and plea in the Provincial Court. The trial judge in that Court prohibited an application for costs, arising from alleged breaches of the respondent’s Charter rights, from continuing as a result. Mr. Fach appealed to the Summary Conviction Court, which ruled in his favor and set aside the trial judge’s dismissal of his costs motion. The Crown appealed that ruling. The Court of Appeal held that once charges have been withdrawn in a criminal matter, the trial judge ceases to have jurisdiction to deal with a Charter application related to breaches of Charter rights in the matter.
[17] In paragraph 3 of the endorsement, the Court explained that it is within the Crown’s power to withdraw criminal charges and it is the Crown’s role, not that of the applicant or the Summary Conviction judge, to determine how the limited resources of the Court should be used. Absent a finding of abuse or other flagrant impropriety, the Court should not interfere with the Crown’s discretion to withdraw charges.
[18] At paragraphs 5 and 6, The Court set out what Mr. Fach could have done regarding his costs claims:
Strong policy reasons support these conclusions. The resources of the summary conviction court are extremely limited and the court is already overburdened. If the respondent’s argument were to succeed, it would mean that whenever the Crown chooses to withdraw charges, an accused could, simply by giving advance notice of alleged Charter breaches and a request for costs, tie up the courts for days and weeks on end litigating Charter breaches and costs issues essentially in a vacuum, there no longer being an accused or any outstanding charges before the court.
Limiting the jurisdiction of the summary conviction court in this way does not leave the respondent without a remedy. There is nothing to prevent him from commencing a civil action for his costs, and perhaps other damages, arising from the alleged breaches of his Charter rights. In our view, the civil courts are far better equipped than the summary conviction court to deal with what essentially are civil consequences flowing from a criminal prosecution.
[19] In this case before me, the striking down of s. 674 of the Criminal Code would have the effect of tying up the courts in the same or worse way than predicted in Fach. In a trial, after the close of the Crown’s case, an accused could appeal the findings of the trial judge on the dismissal of a directed verdict application, leaving the judge and the jury to wait until an appeal to the Court of Appeal is heard and decided and any recourse to the Supreme Court of Canada is had. It is an unworkable process and one considered, no doubt, when the legislation was enacted.
[20] In any event, I have no jurisdiction to decide the constitutional application. It is dismissed on that ground.
The Alleged Charter Breaches
[21] Ms. Ellis is alleging a breach of her s.7 and 11(h) Charter rights by the Crown’s deciding to re-prosecute her after the first trial ended in a hung jury. As a remedy, she seeks to have this court strike down s. 674 of the Criminal Code pursuant to s.52 of The Constitution Act, 1982 so that Parliament will alter the provisions contained in that section to allow a right of appeal to the Ontario Court of Appeal for the dismissed directed verdict motion.
[22] The Supreme Court of Canada rejected Ms. Ellis’ leave application on this issue without giving reasons.
[23] Section 7 of the Charter of Rights sets out the following:
LIFE, LIBERTY AND SECURITY OF PERSON.
- Everyone has the right to life, liberty and security of the person and the right not to be deprived therof except in accordance with the principles of fundamental justice.
[24] Section 11(h) of the Charter sets out that:
PROCEEINGS IN CRIMINAL AND PENAL MATTERS
- Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
[25] Once her charges were withdrawn, Ms. Ellis faced no jeopardy as a result of any breaches of ss. 7 and 11 of the Charter. She is now arguing her application hypothetically.
[26] The applicant maintains that the ruling of O’Marra J. was wrong and, that she was legally entitled to an acquittal (which would invite an application of section 11(h) of the Charter), but there is nothing in this application pointing to there being no evidence in the trial before O’Marra J. that a properly instructed jury could rely upon to render a verdict of guilt. I agree with the submissions of the Crown that the Judge’s refusal to grant the directed verdict on all but one of the charges the applicant faced and the divided jury were circumstantial indications that there was some evidence upon which a jury could render a guilty verdict.
[27] Although the applicant relied on the case of R.v.Hinse, 1997CarswellQue 64 (SCC) for the proposition that she was entitled to an acquittal, that case is entirely distinguishable on its facts from this one.
Disposition
[28] The motion is dismissed. There is no jurisdiction hear it.
McWatt J.
Released: April 6, 2016
COURT FILE NO.: 14-50000187 13-50000809 13-50000218 DATE: 20160406
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – SIOBHAN ELLIS Applicant
Ruling On Constitutional Challenge (Re: Sections 674 of the Criminal Code, 7, 11(h), and 24(1) of the Canadian Charter of Rights and Freedoms and Section 52(1) of the Constitution Act, 1982)
McWatt J.
Released: April 6, 2016