CITATION: Dykstra v. Greensword, 2016 ONSC 8211

COURT FILE NO.: CRIM MOT(F) 1519/16

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARTEN DYKSTRA

CINDY AFONSO and JONATHAN GEIGER, Public Prosecution Service of Canada, for the Applicant

Applicant

• and -

AMAL GREENSWORD

MICHAEL MOON and NIC ROZIER, for the Respondent

Respondent

GREGORY HENDRY, on behalf of the Attorney General of Ontario, Intervenor

HEARD: March 9, 2016

RULING

Contents

Background Facts. 5

The Issuance of the Subpoena. 9

Subpoenas. 11

Certiorari Applications to Quash Subpoenas. 12

Was the Subpoena Properly Issued?. 14

The Positions of the Parties and Intervenor 14

The Applicant’s Position. 14

The Respondent’s Position. 15

The Provincial Attorney General’s Position. 16

Issuing a Subpoena. 17

The Issuer of the Subpoena. 19

The Form of the Inquiry. 19

What information must be provided to the judge, justice or clerk?. 21

Conclusion. 28

The Positions of the Parties. 41

The Applicant’s Position. 41

The Respondent’s Position. 44

Analysis. 47

Conclusion. 54

DURNO, J.

1Amal Greensword, the respondent, Steven Browne and Adrian Williams are charged with the first-degree murder of Dwayne Thompson on November 1, 2012. While the respondent was a suspect shortly after the homicide, he was not arrested until February 20, 2013.

2On November 24, 2012, the respondent was arrested and charged with possession of cocaine for the purpose of trafficking. At the time of his arrest, the officers did not realize the respondent was a suspect in the murder investigation. This became known to the arresting officers when they took him to the station.

3After several days of evidence at his drug trial, conducted as a blended trial/Canadian Charter of Rights and Freedoms application in the Ontario Court of Justice, Marten Dykstra, counsel for the Public Prosecution of Canada (PPSC), advised the trial judge that, “I have concluded that there is no reasonable prospect of conviction anymore, and am going to invite the court to enter a stay pursuant to s. 579(1).”

4At the murder trial, the Crown seeks to introduce evidence of the events before, during and after the respondent’s arrest on the drug charge, as other ‘disreputable conduct’ evidence. The prosecution submits those events are relevant to the murder trial.

5On the Crown’s application, the respondent seeks to call Mr. Dykstra to provide his reasons for staying the drug charge. On February 18, 2016, Mr. Moon, counsel for the respondent, went to the Superior Court Trial Coordinator’s Office and had the subpoena issued by the Deputy Registrar.¹ The subpoena which states that “it has been made to appear that you are likely to give material evidence for the defence” was served on Mr. Dykstra the same date.²

6Counsel from the PPSC, appearing as counsel for Mr. Dykstra, apply for certiorari to quash the subpoena contending:

i. the subpoena was improperly issued as no evidence was provided to support the issuance of the subpoena;

ii. no evidence has been offered by the respondent that the evidence sought even exists; accordingly, seeking to call Mr. Dykstra amounts to a fishing expedition into the exercise of Crown discretion; and

iii. the evidence sought by the respondent is not relevant or material to any issue to be litigated.

7The respondent submits that the subpoena was properly issued. Mr. Dykstra stayed the drug charge and would know why he did so. While agreeing that the onus is on him to show Mr. Dykstra likely has material evidence to give, the respondent contends that on a certiorari application, the merits of the defence arguments on the disreputable conduct application should not be examined. They are appropriately dealt with by the pre-trial motion judge on a full record.

8In the alternative, the respondent submits that Mr. Dykstra’s reasons for staying the charge are material to his position that re-litigating the previous incident is an abuse of process and/or subjects him to double jeopardy.

9For the following reasons, the application is allowed and the subpoena quashed.

Background Facts

10The disreputable conduct application involves allegations that Greensword and Williams were in a car that failed to stop at an intersection. Two officers in a fully marked police cruiser turned around and followed the car. Shortly thereafter, they located the car. It had mounted a curb and crashed into a fence. The driver and passenger fled on foot through a greenbelt area behind some homes. The officer broadcasted the incident over the radio and included in the message that the passenger could be arrested for leaving the scene of an accident, describing him as a young, black male with a shaved head, wearing a grey hoodie and a Fargo hat.

11The Tactical and Canine Units (TAC) attended the area and tracked through the greenbelt area. Eventually, Greensword, a young black male, came from the back of a home. He was wearing a grey nylon jacket with no hood. He was arrested at gunpoint for failing to stop for police, an offence under s. 249.1(1) of the Criminal Code, R.S.C., 1985, c. C-46. The section makes it an offence for the operator of a motor vehicle to fail to stop when being pursued by police. The TAC squad officer, with his automatic rifle drawn, forcibly took Greensword to the ground and arrested him. The Crown alleges that Greensword matched the description of the passenger. The respondent does not agree.

12At the division, the respondent submits that an officer of the Homicide Squad told the arresting officer that the respondent was a suspect in the homicide investigation. The respondent was strip-searched and four baggies containing a total of 35 grams of crack cocaine were located secreted in his underpants. When the car was searched pursuant to a search warrant a rental agreement in the name of Gilbert Johnson was located. Johnson, the person who is alleged to have rented the car used in committing the murder, is expected to testify that he would rent vehicles for Greensword in return for money and/or drugs.

13Greensword’s fingerprint was found in the car. One of two cell phones seized from him, number 416-543-6069, was activated on November 2, 2012. The Crown alleges that before the homicide, Greensword used a phone with the number 647-606-9424. This number that was not used after the date of the homicide. When the drug deal was set up with the deceased, he was called from the number 647-606-9424.

14After the Crown directed the trial judge to stay the proceedings, Mr. Moon submitted that if he were permitted to oppose the stay he would do so. The stay would permit the Crown to reinstitute the proceedings within a year. As an indictable offence the PPSC was not precluded from proceedings at any time. In addition, there was simply no evidence Mr. Greensword was in the car and no basis to arrest him for flight from police. There were no grounds to strip search him, seize his clothes and interrogate him. The stay insulated “a significant pattern of police misconduct and ignorance” of Charter rights from a judicial finding. Mr. Greensword was entitled to an acquittal. Mr. Moon noted that the parallel homicide investigation “to which [his] client was not privy” was the driving force behind the police conduct.

15The trial judge then addressed the respondent and the following exchange occurred between them:

The Court: Mr. Greensword, perhaps just a word to you. You’ve heard the comments that your counsel has made. It would appear that the Crown has stayed the charges against you and so they will be stayed at the request of the Crown.

I heard some of the facts and although I can’t speak necessarily to the credibility or to the manner in which police officers were directing themselves on this day, from the evidence that I do hear – or did hear, it was somewhat troubling.

I think, you know, you’re a young man that’s got a long life left to live, you know, so – and you know how things can go when you’re driving in a car or when you’re just walking on a street. And so I think, you know, just car or no car, outside or inside, sometimes people get a little more attention than others, you know what I mean?

Amal Greensword: I understand.

The Court: All right. So under the circumstances, without making any comment and having the record reflect the comments that both counsel have made, the charges are stayed.

16The Crown seeks to lead the evidence of the November 24, 2012 incident to show Greensword and Williams were together that night, that Greensword was in possession of drugs and in a vehicle rented by Johnson, that Greensword was in possession of a key to a Dodge 200 vehicle with license plate BLFL 870, a vehicle associated with the homicide and that Greensword had possession of a cellphone with the number 416-543-6069.

17The three accused were committed for trial on August 8, 2014. At their preliminary inquiry, the officers involved in the November 24, 2013 incident testified again.

18At a pre-trial conference to address scheduling issues on the homicide trial on February 18, 2016, Mr. Moon advised for the first time that he intended to call Mr. Dykstra as a witness on the Crown’s other disreputable conduct application. This late-breaking development was first raised virtually on the eve of the pre-trial motions scheduled to commence on March 14, 2016, despite the fact that the admissibility of the disreputable conduct evidence has been at issue for many months.

19At the pre-trial, it was agreed that the respondent should obtain the subpoena and serve it on Mr. Dykstra as soon as possible since the pre-trial motions were to start in less than one month, it was anticipated the PPSC might seek to quash the subpoena and the challenges in having a judge hear the application to quash the subpoena in a timely manner.

20On February 19, 2016, a subpoena ad testificandum was obtained and personally served on Mr. Dykstra.

The Issuance of the Subpoena

21The applicant’s evidence in relation to how the subpoena was issued is found in the affidavit of Ellen Homem, a paralegal for the PPSC. She recounts a speaker phone telephone call between the Deputy Registrar and counsel for the PPSC on March 2, 2016. According to Ms. Homem’s affidavit, the Deputy Registrar said the respondent did not file any material in support of the issuance of the subpoena and no notes were kept of the proceeding. The Deputy Registrar “essentially examined the subpoena to ensure that it had a name and address of a witness and the respondent represented that the witness has relevant evidence to give.”

22Regrettably, the Deputy Registrar was not told that her answers were to or could become evidence in this application. Nor is there any indication that she was ever shown the affidavit to confirm that it was complete and accurate account of what occurred. Neither was she ever told that the PPSC asserted that she exceeded her jurisdiction in issuing the subpoena.³

23After Ms. Homem’s affidavit was served on the respondent, to provide a fulsome account of the issuance of the subpoena, the respondent filed the affidavit of Mr. Moon’s articling student who attended at the Deputy Registrar’s office with Ms. Rozier on March 4, 2016 and asked if she would be prepared to answer some questions about the subpoena. She was told that her answers would form part of an affidavit to be filed on this application by the respondent. She agreed.

24The Deputy Registrar advised that Mr. Moon personally attended at her office and asked that the subpoena be issued. Recognizing Mr. Dykstra as one of the Brampton PPSC counsel, the Deputy Registrar questioned Mr. Moon about the subpoena. He told her that the issuance of the subpoena had been discussed at the pre-trial conference the day before, that Provincial Crown counsel and myself, as the pre-trial judge, were aware that the subpoena was going to be issued. The Deputy Registrar was aware that a pre-trial conference had been held the previous afternoon. Based on the information presented to her by Mr. Moon, the Deputy Registrar concluded that Mr. Dykstra was likely to have material evidence to give and issued the subpoena.

25The affidavit included that the Deputy Registrar signs thousands of subpoenas on an annual basis.⁴ In issuing this subpoena, she followed the same procedure she has been instructed by the Court to follow when anyone seeks a subpoena. She collects information such as the name and address of the individual being subpoenaed and whether it will be a subpoena duces tecum or a subpoena ad testificandum. Based on the information provided, the Deputy Registrar determined whether the proposed witness was likely to give material evidence.

26There were no applications to cross-examine either of the affiants. Accordingly, I proceed on the basis that what occurred when the subpoena was issued is reflected in the two affidavits.

Subpoenas

27A subpoena is a court order. Literally translated, subpoena means “under penalty” and commands the named person to appear at the time and place specified to give testimony about the matter(s) in dispute between the parties: see R. v. Baltovich [Finkle v. Ontario], [2007] O.J. 3506, at para. 88 (Finkle).

28A subpoena ad testificandum orders a witness to appear and give evidence. A subpoena duces tecum orders a witness to appear and to bring specified documents or records. For example, a witness can be ordered to bring with him or her books, papers and other items connected with the witness’ testimony.

29There can be significant implications for the proposed witness. A person properly served with a subpoena who does not attend at the time and place specified, a person who is about to abscond or has absconded before receiving a subpoena, or a person who has been bound by a recognizance to attend and does not attend, can be arrested and held in custody for up to thirty days: Criminal Code, s. 704, 705, 706, and 707. Further, a person who fails to comply with a subpoena testificandum is guilty of contempt of court and is liable to 90 days in jail and a $100 fine: Criminal Code, s. 708.

Certiorari Applications to Quash Subpoenas

30A rebuttable presumption of regularity applies to subpoenas that are valid on their face. The burden of displacing that presumption is on the party seeking to quash the subpoena by introducing evidence: see R. v. Young (1999), 1999 CanLII 1522 (ON CA), 138 C.C.C. (3d) 184, leave to appeal refused [1999] S.C.C.A. 434, at para. 7.

31Certiorari applications are generally argued on the record in the lower court, almost invariably on a transcript. Where the application is to quash a subpoena, in many cases there is no transcript or any other record of the subpoena’s issuance.

32On most applications to quash subpoenas, one or both parties file affidavits or other material upon which the application judge considers whether the respondent has shown that the proposed witness likely has material evidence to give on an expanded record. On this aspect of the application, the onus is on the respondent on a balance of probabilities: see R. v. Harris (1994), 1994 CanLII 2986 (ON CA), 93 C.C.C. (3d) 478 (Ont.C.A.)

33In determining whether the respondent has met his or her onus, the application judge is not always precluded from looking at the admissibility of the proposed evidence. Watt J. held in Finkle, at para. 73:

It may also be appropriate on review to consider whether the proposed evidence is reasonably capable of admission in the proceedings in which it is to be tendered. While admissibility is for the trial judge to decide, there may be some cases in which it may be obvious that what is proposed to be given falls foul of the incontrovertible rules of admissibility, or cannot enter the proceedings for some other reason. [Emphasis added]

Issues

Was the Subpoena Properly Issued?

The Positions of the Parties and Intervenor

The Applicant’s Position

34In their factum, the PPSC relied upon the procedures suggested by Trafford J. in R. v. Brown, [1997] O.J. No. 6171 (Gen. Div.), including that the issuing party should “perhaps” maintain a record of the affidavit used to obtain the subpoena and/or a tape recording of the exchange between the requesting party and the issuing judge or justice of the peace: at para. 13. Further, it was improper for a lawyer to request a subpoena for discovery purposes without satisfying the justice of the peace that there was a proper basis for issuing a subpoena.

35The PPSC submits that the mere assertion that a witness will likely give material evidence is not sufficient, the Criminal Code requires more. While there is a presumption of regularity with respect to subpoenas that are valid on their face, the presumption can be rebutted and has been through Ms. Homem’s affidavit. The PPSC asserts that there was no basis upon which it could be concluded that the witness was likely to give material evidence, there was just a bald assertion. The Deputy Registrar’s conclusion was “speculative and not founded on evidence.” In fact, she acted in excess of her jurisdiction.

36Further, the PPSC submits that “there was no regard for the possibility that privilege may attach to the evidence of Crown counsel.” The failure to properly obtain the subpoena provides grounds to quash it. Process cannot be issued without evidence in support of the application. Here, the respondent “merely represented to the Registrar that the witness had relevant evidence to give.” This representation is not evidence and no material was filed in support of the application for the subpoena.

The Respondent’s Position

37The respondent contends that the presumption of regularity has not been rebutted by Ms. Hamom’s affidavit. The Deputy Registrar did ask questions in relation to the subpoena for Mr. Dykstra. Her conduct was unimpeachable.

38The PPSC is wrong in submitting that supporting material must be provided to the issuing party or that the issuing party is required to maintain a permanent record of the proceedings.

39The respondent submits that, unlike some of the authorities relied upon for quashing subpoenas (referenced later in the reasons), there is no affidavit from Mr. Dykstra that he has no material evidence to give.

40In addition, there is an important distinction between subpoenas ad testificandum and subpoenas duces tecum – a distinction considered by the Deputy Registrar. The majority of the cases upon which the applicant rely are cases of subpoenae duces tecum, a subpoena that attracts a greater level of scrutiny and a subpoena with regards to which the phrase “fishing expedition” originated.

The Provincial Attorney General’s Position

41At the end of submissions, Gregory Hendry, one of the Provincial Crown Counsel prosecuting the murder charge sought leave to present submissions on the procedural issue. Neither Mr. Moon, nor Ms. Afonso⁵ opposed the Provincial Crown’s submissions.

42Mr. Hendry restricted his submissions to applications for subpoenas by counsel or a representative of the PPSC or the Crown Attorney’s office. He did not address the procedure for an application by members of the public. He submitted that where counsel, a representative of the PPSC or the Crown Attorney’s office attended upon the Registrar and advised her that the named person was likely to give material evidence that was a sufficient basis upon which to issue a subpoena. He notes that the recipient of a subpoena can always challenge the subpoena in the Superior Court of Justice.

Issuing a Subpoena

43The starting point in analyzing the applicant’s submission that the subpoena was improperly issued is the Criminal Code:

698. (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence. [Emphasis added]

699. (1) If a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction other than a Provincial court judge acting under Part XIX, a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required.

Order of judge

(2) If a person is required to attend to give evidence before a Provincial court judge acting under Part XIX or a summary conviction court under Part XXVII or in proceedings over which a justice has jurisdiction, a subpoena directed to the person shall be issued

(a) by a Provincial court judge or a justice, where the person whose attendance is required is within the province in which the proceedings were instituted; or

(b) by a Provincial court judge or out of a superior court of criminal jurisdiction of the province in which the proceedings were instituted, where the person whose attendance is required is not within the province.

Order of judge

(3) A subpoena shall not be issued out of a superior court of criminal jurisdiction pursuant to paragraph (2)(b), except pursuant to an order of a judge of the court made on application by a party to the proceedings.

Seal

(4) A subpoena or warrant that is issued by a court under this Part shall be under the seal of the court and shall be signed by a judge of the court or by the clerk of the court. (Emphasis added)

Signature

(5) A subpoena or warrant that is issued by a justice or Provincial court judge under this Part shall be signed by the justice or Provincial court judge.

Sexual offences

(5.1) Notwithstanding anything in subsections (1) to (5), in the case of an offence referred to in subsection 278.2(1), a subpoena requiring a witness to bring to the court a record, the production of which is governed by sections 278.1 to 278.91, must be issued and signed by a judge.

Form of subpoena

(6) Subject to subsection (7), a subpoena issued under this Part may be in Form 16.

Form of subpoena in sexual offences

(7) In the case of an offence referred to in subsection 278.2(1), a subpoena requiring a witness to bring anything to the court shall be in Form 16.1.

Contents of subpoena

700. (1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings.

Witness to appear and remain

(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or Provincial court judge.

See also, s. 704, 705, 706, 707 and 708 in Schedule A.

The Issuer of the Subpoena

44The Criminal Code provides for judges, justices or court clerks to issue subpoenas depending on the court where the proceeding will be held and the nature of the evidence sought. First, the subpoena issues out of the court before which the proposed witness is required (s.699(1)). Second, where the trial is to be held in the Ontario Court of Justice, a judge or justice of that court must issue the subpoena where the witness resides in Ontario (s.699(2)(a)). Third, where the witness in an Ontario Court trial resides outside of Ontario, the subpoena must be issued by a Provincial Court judge or a judge of the Superior Court (s. 699(2)(b)). Where the out-of-province subpoena is sought in the Superior Court, an application is required (s. 699(3)) and only a Superior Court judge can issue the subpoena. Fourth, for proceedings in the Superior Court only a judge or clerk of that court has jurisdiction to issue a subpoena, a justice of the peace does not (s. 699(4)). Fifth, where third party records are being sought through a subpoena duce tecum, the subpoena must be signed by a judge (s. 699(5)).

The Form of the Inquiry

45The Criminal Code is silent as to the form of the inquiry other than that an out-of-province subpoena issued from the Superior Court must be “on application:” See Finkle, at paras. 58 and 62. There is no requirement in the Criminal Code or elsewhere that a record be kept of what representations are made to the judge, justice or clerk who is being asked to issue a subpoena: See Young, at para. 4. Nor is there any requirement that material be filed except on an application under s. 699(2)(b) before a Superior Court Judge. In particular, there is no requirement that affidavit evidence, statutory declaration or similar documents be filed which justify the issuance of a subpoena: See Young, at para. 4 and Finkle, at para. 63. Accordingly, “it is reasonable to conclude that Parliament did not consider it necessary to require such a formalized procedure for the issuance of a subpoena:” See Finkle, at para. 35.

46That is not to say that a judge, justice or clerk cannot require an affidavit, statutory declaration or other written material to establish the proposed witness likely has material evidence to give. It is a matter within his or her discretion. Where written material is filed, the application is recorded, or any record is kept of the application for the subpoena, caution must be exercised with respect to the record. Where it is a defence application, I agree with Mr. Moon that to have a publicly accessible record of the defence witnesses could amount to a form of defence disclosure of their case. Where it is a Crown application, there could be concerns for witnesses’ names and/or addresses becoming publicly accessible. Accordingly, where any material is filed or a record is kept of an application for a subpoena, such material or record should not be part of the public record. In these circumstances, it would be prudent to have the material sealed, put in the court file, and not to be accessed by anyone without a court order.

The Nature of the Inquiry into the likelihood the proposed witness has material evidence to give:

What information must be provided to the judge, justice or clerk?

47In determining whether to issue a subpoena, the judge, justice or clerk is exercising a statutory discretion: See Finkle, at para. 34. There is no entitlement to a subpoena “for the asking” without more information being provided to the issuer: see R. v. Kermani, [2007] O.J. No. 4395 (S.C.J.) at para. 7; R. v. Coote, [2009] O.J. No. 1599 (S.C.J.)

48The starting point is s. 698(1) of the Criminal Code which provides that the witness is likely to give material evidence. That is the threshold. Material evidence is evidence that tends to prove or disprove a fact in issue. It is evidence that is pertinent to the issue in dispute: see Finkle, at para. 71.

49The Criminal Code is silent as to how the threshold is met: see Finkle, at paras. 58 and 62. While not included in the enabling sections of the Criminal Code or in any other forms, Forms 16, 16.1 and 17 dealing with subpoenas require the issuer to find that “it has been made to appear that you are likely to give material evidence.”

50The “it has been made to appear” seems to have originated in the 1886 Criminal Code, Revised Statutes of Canada [c. 174, s. 60]. Section 580 of the 1892 Criminal Code provided that, “If it appears to the justice that any person … Is likely to give material evidence … he may issue a summons.” The Summons to a Witness stated: “Whereas information has been laid before the undersigned, a justice of the peace … and it has been made to appear to me upon oath that you are likely to give material evidence …. These are therefore to require you to … to appear …”

51The enabling section remained the same until 1953 when the current wording, without reference to “it has been made to appear” came into effect. While the oath requirement remains for some forms such as Form 5, it has been removed. However, the “it has been made to appear” component has remained to today’s date.

52What is required is a basis upon which the issuer can conclude that it is probable that the proposed witness has material evidence to give. It must be more than a mere possibility or something that exists in the applicant’s “fevered imaginings:” see Finkle, at para. 70.

53Section 698 is drafted in permissive terms, the subpoena “may” be issued if the statutory threshold is met: see Finkle, at para. 59. Subpoenas are not to be issued for the asking, without more: see Finkle, at para. 60. The party seeking the subpoena must “in some manner or other,” satisfy the issuer that the proposed witness is likely to give material evidence: see Finkle, at para. 60.

54Watt J. cited with approval the comments of Bayda C.J.S. in Foley et al. v Gares (1989), 1989 CanLII 5134 (SK CA), 53 C.C.C. (3d) 82 (Sask. C.A.), at para. 64, where the Chief Justice held:

What type of inquiry is a justice acting under ss. 626 and 627(2)(a) required to make? It is safe to say that the standard of inquiry is not so high, for example, as that expected of a judge acting under s. 627(3) [issuing an out-of-province subpoena], but the justice nonetheless should make some examination of the circumstances. He is given discretion in the matter of issuing the subpoena and he should exercise it judiciously if not judicially. The justice may choose not to insist upon evidence on oath but he may want to conduct an oral examination, if only a cursory one, of some person who has knowledge of the circumstances. The extent of such an examination will depend on the circumstances of each situation. One thing however is certain. If he takes no steps whatever to satisfy himself that the person is likely to give material evidence, the justice is abusing his power and his discretion if he issues the subpoena. His decision to issue the subpoena may be set aside by a superior court on the ground that without making any examination the justice had no jurisdiction to exercise his discretion to issue the subpoena. In short his decision is amenable to certiorari.

55Similarly, Watt J. quoted with approval the comments of Hill J. in R. v. Dickie, 1996 CanLII 8293 (ON SC), [1996] O.J. No. 3239, 110 C.C.C. (3d) 573, at para. 13:

The exercise of judicial determination of the likelihood of materiality contemplates some articulation of facts by the applicant supportive of the pleaded belief that a court order ought to issue. The likely materiality of evidence must be contextualized to the specific case. The standard then is a relative term with materiality measured in light of the precise issues formulated in the litigation. A failure to provide a legally adequate factual substratum for the application can, in some circumstances, lead readily to the perception that what is sought is an "off the shelf" subpoena.

56In Dickie, the Crown sought two out-of-province subpoenas based on the investigating officer’s affidavit that stated the proposed witness “is a witness in this matter, lives in British Columbia and I believe he is likely to give material evidence.” Of note, in Dickie, the subpoena was one that could only be issued by a judge and one where a higher level of inquiry is expected: see Foley, at para. 64.

57Hill J. refused to issue the subpoena and found that the issuance of a subpoena was not “a mere administrative function.” Before any witness was put to the inconvenience of coming to Ontario or retaining counsel to move to quash the subpoena, judicial scrutiny of the request was required. Finally, legal sufficiency was absent where the applicant could say nothing more than that the prospective witness may have material evidence to give. A mere statement of unsupported conclusion does not discharge the burden on the applicant. Hill J. relied in part on the Alberta Court of Appeal judgment in R. v. Gingras (1992), 1992 CanLII 2826 (AB CA), 71 C.C.C. (3d) 53 (Alta. C.A.), which involved an out-of-province subpoena duce tecum.

58In Finkle, Watt J. cautioned that to “hem applicants for subpoenas into a particular form of information …. seems at once inconsistent with the terms of the provision and inimical to the best interests of the administration of justice. Excessive formality would ensure form triumphs over substance and serve no useful purpose.” However, to simply attend with a list of addresses and names to demand and expect subpoenas to issue would reduce the likely to give material evidence criteria to a “mere shibboleth:” at para. 68. The issuer must have information on the basis of which he or she can conclude that the threshold is satisfied.

59In Finkle, Watt J. quashed a subpoena where the investigating officer filled out the subpoena duces tecum with the witness’ name, return date, and a description of the documents and records to be brought. Finkle was a journalist who had interviewed Robert Baltovich. The Crown sought those interviews for Baltovich’s second trial. The officer did not attend before the clerk of the Superior Court. Instead, a clerk in the Crown Attorney’s office provided no information to the clerk upon which the issuer could conclude that the witness “was likely to give material evidence.” A second subpoena was also quashed. The officer went to the clerk’s office and told the clerk that the statements attributed to Baltovich in Finkle’s book were “pertinent.”

60While the applicant relied upon the procedure and form of the information suggested in Brown, Young and R. v. Elliott (2003), 2003 CanLII 24447 (ON CA), 181 C.C.C. (3d) 118 (Ont.C.A.), both Court of Appeal judgments, have provided further binding guidance.

61Elliott was a Crown appeal from a stay of proceedings in a murder trial. An issue arose regarding the Ontario Provincial Police case manager in the murder trial having acted improperly in another murder prosecution (the Cumberland case). One of the contentious issues was when Crown Counsel in the Elliott trial knew of the R.C.M.P. investigation into the O.P.P. officer’s conduct. The trial judge in Elliott permitted defence counsel to call four Crown Attorneys who were prosecuting the Elliott murder and four Crown Attorneys from the Cumberland case.

62The Court of Appeal held that there was no basis for permitting defence counsel to call any of the Crown Attorneys. It was only in exceptional circumstances that Crown or defence counsel would be permitted to call opposing counsel as a witness. That opposing counsel may have material evidence was insufficient. The party seeking to call opposing counsel was required to lay an evidentiary foundation showing that counsel’s evidence was likely to be relevant and necessary:” see Elliott, at para. 114. The Court held that counsel’s evidence was immaterial because it related to matters “that on any view of the facts could not substantiate an abuse of process.” It was a fishing expedition pursuing an issue that was of no consequence to the litigation. There was no version of the issue that could ever support an abuse of process: see Elliott, at para. 117.

63The Court then addressed “the test for calling witnesses in general,” finding that “strictly speaking” the necessity test did not apply to the Cumberland Crown Attorneys as they were not opposing counsel. The Court continued this analysis at para. 119:

119 … However, it was incumbent on defence counsel to show that these counsel had material evidence to give. Ordinarily, a subpoena will go as a matter of course upon the statement by counsel that a witness has material evidence to give. However, where the subpoena or the right to call a witness is challenged, a mere allegation that the proposed witness has material evidence to give is not sufficient. The party must establish that the witness can give material evidence. Defence counsel made no such showing with respect to the Cumberland Crown counsel. [Emphasis added]

64The judgment has never been overruled or questioned by the Court of Appeal or the Supreme Court of Canada. Accordingly, ordinarily where counsel has stated that the witness has material evidence to give, the subpoena will go as a matter of course.

65That is not to say that the subpoena must always issue upon counsel’s statement. Whether to issue a subpoena is a matter within the issuer’s discretion. The discretion must be exercised on a case-by-case basis. There will be occasions where the issuer could require more details. However, it is incorrect to assert that counsel’s statement is always insufficient.

66Elliott also makes it clear that once the subpoena is issued, if the proposed witness challenges the subpoena, it is for the respondent to show on a more fulsome record that the proposed witness likely has material evidence to give. Where the respondent provides no further evidence to justify the issuance of the subpoena, the subpoena will be quashed.

Conclusion

67I am not persuaded the subpoena was improperly issued for the following reasons.

68First, this is a subpoena that Parliament has permitted a clerk to issue. The proceeding is in the Superior Court so that the subpoena has to issue out of this court. Mr. Dykstra’s address on the subpoena is in Ontario. It does not relate to third party records.

69While many of the cases relied upon involved subpoenas issued by judges or justices of the peace, for subpoenas in Superior Court proceedings, s. 699(4) provides for judges of this court and for court clerks to issue subpoenas. Brown, upon which the PPSC relies heavily, is a 1997 case that proceeded on the basis of justices of the peace issuing subpoenas in the Superior Court.

70Unlike judges, clerks do not preside in courtrooms, do not have court reporters, and generally do not record inquiries. They are not required to have law degrees or to have practiced law. In this context, where Parliament has conferred jurisdiction on a court clerk to issue subpoenas, it is unrealistic to assume that Parliament intended clerks to assess legal issues such as the admissibility of the evidence, whether it involved privilege issues, whether the evidence was necessary where that test applies or whether double jeopardy, abuse of process or Charter issues arose.

71As Foley holds, there can be different levels of scrutiny required for the issuance of different subpoenas. For example, Parliament has held that only judges can issue subpoenas for third party records. In Foley, Bayda, C,J.S. held that whether to issue an out-of-province subpoena required a higher inquiry than for those where the proposed witness resided in the province of the trial.

72The fact that the evidence would be subject to an admissibility determination by the trial judge does not preclude the issuance of a subpoena by a clerk. Were it otherwise, no subpoena could issue, for example, if the Crown sought a subpoena for a witness to give evidence of the ante mortem statements of a homicide victim, the admissibility of which was to be determined on the witness’ ‘will state.’ In such a case it could not be said that the witness likely has material evidence since it may be inadmissible.

73That is not to say that subpoenas should be available from clerks for the asking or as Hill J. noted in Dickie, that an “off the shelf” subpoena should exist. If the judge, justice or clerk takes no steps whatsoever to satisfy him or herself that the proposed witness likely has material evidence to give, the issuer abuses “his power and his discretion if he issues the subpoena:” see Foley, at para. 64. Even when a justice is considering the application, he or she may wish to conduct an oral examination, if only a cursory one, of some person with knowledge of the circumstances: see Foley, at para. 64. The same must apply to clerks.

74Second, the Deputy Registrar reviewed the subpoena and made “some examination” of the circumstances. The extent of the inquiry was related to the circumstances as required in Finkle. The Deputy Registrar made inquiries about a PPSC counsel being subpoenaed. This was neither a silent review nor the Deputy Registrar finding a bundle of subpoenas on her desk with no subpoena-specific information provided.

75Third, the Court of Appeal has held that where counsel states that the proposed witness has material evidence to give, the subpoena can issue as a matter of course. In Elliott, it was defence counsel who made the representation to a judge of the Superior Court. The same criteria would apply for the Crown Attorney assigned to the case. If counsels’ representations can be acted upon by a judge, there is no apparent reason why a clerk cannot act upon the assigned Crown’s or defence counsel of record’s statements. While the Deputy Registrar was not required to issue the subpoena, it was within her discretion to do so. On counsel’s statement alone the subpoena could have issued.

76Fourth, the Deputy Registrar was told that the issuance of the subpoena was discussed at a judicial pre-trial conference the day before. She was also told that the respondent was urged to have the subpoena issued as soon as possible to provide the PPSC an opportunity to apply to quash the subpoena if they wished to do so. The objective in having the subpoena issued as soon as possible was to attempt to avoid having an application to quash the subpoena interfere with the upcoming trial. What other inference was the Deputy Registrar to draw other than that in discussions with Provincial Crown Counsel, defence counsel and a judge, it was anticipated that the subpoena would be issued? Since it is clear from Mr. Moon’s student’s affidavit that the Deputy Registrar relied on the pre-trial discussion, what occurred at the pre-trial conference was a relevant factor to consider in assessing whether material evidence was likely to be given by Mr. Dykstra. While not in itself determinative, it was relevant.

77Fifth, as an officer of the court, counsel of record represented that this witness was likely to give material evidence. Counsel are bound by the Rules of Professional Conduct which includes a “duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity:” see Rule 2.1-1. Further, a lawyer when acting as an advocate shall not needlessly inconvenience a witness: see Rule 5.1-2.

78While more information might have been provided, that is not the test. The information upon which the Deputy Registrar acted was adequate in these circumstances. The Deputy Registrar acted properly and within her jurisdiction.

Is more required from persons who are not defence counsel of record or the assigned Crown or from self-represented accused persons than an assertion that the proposed witness likely has material evidence to give?

79It is apparent from the cases relied upon that in many instances it is neither defence counsel of record nor the assigned Crown who attends to obtain subpoenas. It can safely be assumed that on occasion police officers, law clerks, law students, office clerks, secretaries, administrative assistants, paralegals, couriers, process servers and other staff members from the Crown or defence counsels’ offices⁶ as well as self-represented accused persons attend to have subpoenas issued.

80Since the PPSC’s application put in issue the manner in which thousands of subpoenas are issued in this courthouse, having found that defence counsel of record or the assigned Crown can obtain subpoenas in the manner indicated, it is appropriate to address whether that same procedure applies to applicants who are not counsel of record or the assigned Crown.

81I am not persuaded that Elliott should be interpreted or expanded beyond the assigned Crown or defence counsel of record obtaining subpoenas “as a matter of course” on their oral representations for the following reasons. First, the Court of Appeal was dealing with subpoenas issued by a judge of the Superior Court of Justice to defence counsel of record.

82While counsel are officers of the court and owe a duty to the court, I am not prepared to expand Elliott to oral representations by counsel who are not the assigned Crown or defence counsel of record. It was trial counsel’s representations with which the Court of Appeal was dealing, not counsel unfamiliar with the file acting as an agent for counsel. The authorities referenced earlier are clear that some inquiry and details regarding the evidence are required.

83Second, Elliott should not be expanded to agents’ oral representations. None of the agents noted earlier who attend to obtain subpoenas are entitled to make representations in the Superior Court. The issue of where to draw the line in the list of agents who can obtain subpoenas upon their oral representation on behalf of counsel is problematic and could result in unfairness and confusion. In Finkle, subpoenas issued to a clerk in the Crown’s office and a police officer were quashed.

84That is not to say that the assigned Crown or defence counsel of record are the only ones who can have a subpoena issued. As long as the agent or other counsel, provides a written and dated case-specific statement setting out the number of subpoenas being sought and that he or she, as the assigned Crown or defence counsel of record, has concluded the proposed witness(es) likely has/have material evidence to give, the clerk has jurisdiction to issue the subpoena. However, he or she may ask further questions and/or require the attendance of counsel to ask further questions. While I appreciate that this approach may add some work for those applying for the subpoenas, it will ensure that there is counsel’s statement that the witness likely has material evidence to give.

85Where an agent or other counsel on behalf of defence counsel of record or the assigned Crown’s attends to have a subpoena issued without a written statement from counsel regarding the witness likely having material evidence to give, he or she should be prepared to answer questions regarding the evidence that the witness is likely to give and why it is material. The description need not be lengthy: indeed, it can be brief. For example, the description could be that the charge is robbery and the witness was the teller who was robbed.

86For self-represented accused or other persons who are neither counsel nor agent for counsel, a similar approach should be applied. An assertion that a proposed witness likely has material evidence to give by a self-represented accused person or someone who is neither counsel nor agent for counsel seeking a subpoena is insufficient. For the threshold to be met, the issuing judge, justice or clerk has to have more detailed information with regards to the nature of the evidence and how it is likely material to the specific prosecution. A subpoena cannot issue “as of right” because the applicant is charged with a criminal offence.

87Whether the issuer requires further information, evidence under oath, an affidavit, statutory declaration or oral submissions, will be for the judge, justice or clerk to determine applying a case-specific analysis. One size does not fit all subpoena applications. As occurred in some of the cases relied upon, where the applicant seeks to subpoena a large number of people or persons about whom it cannot readily be determined that they likely have material evidence to give (such as the Prime Minister) the prudent course would be to require a written application. Indeed, there may be cases where the clerk would be justified in inquiring if a judge would determine the application on a written record.

88While it would be prudent in some cases for the clerk to keep a record of the representations, that is not required. Where any documentation is filed in support of the application, it should be sealed, not to be opened without a court order and placed in the court file.

89Finally, there will be cases where the nature of the applications and/or the applicant could result in different procedures and conditions under which subpoenas can be sought. For example, where a self-represented accused person seeks subpoenas, it may be that the application is held in camera without the Crown’s presence so that the accused is not required to disclose his or her defence in the Crown’s presence: see R. v. Fazekas, [2010] O.J. No. 5100 (S.C.J.). Restrictions could include a requirement that the self-represented persons give the Crown three-days’ notice of an application: see Kermani; Coote.⁷ Further orders can be made prohibiting applicants from applying to a clerk for subpoenas and requiring the applicant to appear before a judge: see Tonner v. Lowry et al., 2016 FC 230, 2016 F.C. 230, at para. 10.

90Before addressing the review of the subpoena for Mr. Dykstra, the following summarizes the findings in relation to subpoenas:

i. the issuance of a subpoena involves a statutory discretion;

ii. the application must be case and subpoena-specific;

iii. the issuer must be satisfied that the proposed witness likely has material evidence to give in the case,

iv. subpoenas cannot be issued for the asking without some case-specific inquiry; where a subpoena is presented to a judge, justice or clerk in the Superior Court of Justice, simply asking him or her to sign the subpoena, without more is wrong; to issue a subpoena without any inquiry results in the issuer abusing his or her power and discretion - it is a subpoena issued in excess of the issuer’s jurisdiction;

v. where a request for a subpoena without more information is made by the Crown, police, defence or self-represented accused in the case, the subpoena cannot issue “as of right;” if an issuer were to receive one or more subpoenas on his or her desk with only an indication they are from the Crown, defence, police or self-represented accused, the issuer has no jurisdiction to issue the subpoena;

vi. where Crown counsel assigned to the case or defence counsel of record personally state to the issuer that the proposed witness likely has material evidence to give, ordinarily the subpoena will issue as a matter of course without more information being provided; that is not to say that it must issue; only that it is a matter within the issuer’s discretion;

vii. where an agent appears for defence counsel of record or the assigned Crown, he or she should provide a dated, case and subpoena-specific written statement that includes the number of subpoenas being sought and that counsel confirms the witness(es) likely has/have material evidence to give. Whether the issuer has the written statement filed is in the discretion of the issuer. If it is filed, it should be sealed and placed in the court file, noted not to be opened without a court order. The applicant should retain a copy of the statement.

viii. where an agent appears for counsel without a written statement, the agent should provide the issuer with the nature of the witness’ evidence and information regarding how it is material to the issues in the case; whether those representations are in writing, given orally or otherwise is within the discretion of the issuer, without representations that satisfy the issuer that the potential witness likely has material evidence to give, the issuer has no jurisdiction to issue the subpoena;

ix. where the person applying for the subpoena is neither the assigned Crown, defence counsel of record or an agent for counsel of record, the issuer should make inquiries to determine whether the proposed witness likely has material evidence to give; this should include the nature of the evidence and how it is material to the issues in the case; simply being told the witness likely has material evidence to give is insufficient; whether the issuer requires the information in writing, given orally or otherwise is within the discretion of the issuer but there may be cases where the clerk would seek to have a judge consider the application on written material or in court;

x. where any material is filed on an application for a subpoena whether for a Crown or defence subpoena, it should be sealed, and must not be opened without a court order and kept in the court file; and

xi. where any material is filed on an application, whether for a Crown or defence subpoena, the applicant should retain a copy of any document filed.

Is the certiorari application to quash a subpoena limited to a review of the procedure applied and the likely material test?

91The next issue is whether, on an application to quash a subpoena, the reviewing judge can ever examine the merits of the application for which the subpoena is sought. Mr. Moon submits that an issuing or reviewing court cannot examine the merits of the arguments to which the respondent says the evidence sought is material. Once it is determined that the subpoena was properly issued and should not be quashed pursuant to the “likely to give material evidence” test on the expanded certiorari application record, the remaining issues are for the pre-trial motions judge. Admissibility is beyond the scope of a certiorari application. While the cases relied upon by both parties to this application addressed the substantive issues, the respondent submits that, in effect, the courts should not have addressed them.

92The PPSC submits that no authorities exist to support the respondent’s position. Indeed, every authority relied upon by both parties examined the merits of the grounds upon which the respondents based their claim that the proposed witness likely had material evidence to give.

93I agree with the PPSC. No authorities were presented by the respondent in support of his submission. Indeed, as Watt J. noted in Finkle, there may be cases where it is appropriate to consider whether the proposed evidence is reasonably capable of admission (at para. 73). When the issuance of a subpoena is challenged, it is difficult to see how the evidence can be shown to be material without some reference to the issues in dispute i.e. the fact in issue that the proposed witness’ evidence tends to prove or disprove.

94For example, if a subpoena was challenged on certiorari, the respondent submitted that the evidence was material to his or her s. 8 of the Charter application and it was readily apparent that the respondent had no standing to challenge the search, it cannot be said that the proposed witness likely has material evidence to give.

95I agree that the ultimate merits of the abuse of process and/or double jeopardy applications are for the trial judge to determine. However, on an application to quash a subpoena, the reviewing courts routinely and correctly examine in a preliminary manner, whether the evidence would be admissible and whether the application could succeed based on the proposed evidence. Where the record is expanded (as here) and whether the “likely to give material evidence” test has been met, have appropriately been examined in the context of the purpose for which the evidence is sought. On a review, if the proposed evidence could never be admissible or the application has no reasonable prospect of success, it is difficult to see how it would meet the “likely to give material evidence” threshold.

Has the respondent established that Mr. Dykstra likely has material evidence to give on the expanded certiorari record?

The Positions of the Parties

The Applicant’s Position

96The PPSC submits that no evidence has been offered that the evidence sought even exists. If it exists, it is not material to any issue in dispute in the murder trial. Ms. Afonso submits that is incumbent on the applicant to provide “an evidentiary foundation to believe the evidence sought even exists.” Here, there was no evidence before the issuing Deputy Registrar or on this review that the evidence sought exists. That a potential witness may have material evidence is not sufficient. The applicant must show that the potential witness likely has material evidence. Speculation and suspicion is not enough. What the respondent seeks is approval to embark on a fishing expedition.

97The PPSC relies on the Court of Appeal judgment in Harris, at p. 479 where the Court adopted the comments of Craig J. in Re Stupp et al and The Queen (1982), 70 C.C.C. (3d0 107 at p. 121:

In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis for believing that it is likely the witness can give material evidence.

98Since the respondent seeks to inquire into the exercise of Mr. Dykstra’ prosecutorial discretion, relying on R. v. Durette 1992), 1992 CanLII 2779 (ON CA), 9 O.R. (3d) 557 (C.A.) the applicant submits that the respondent bears the burden of making a “tenable allegation of mala fides on the part of the Crown.” The allegation must be supportable by the record before the court and where it is not, by an offer of proof. Otherwise, the court is entitled to assume what is inherent in the process - that the prosecutor exercised his or her discretion properly.

99The PPSC submits that setting aside a potential litigation privilege argument, there is no use to which the respondent could put Mr. Dykstra’s reasons for staying the proceedings. Even assuming that the federal and Provincial prosecutors consulted before the stay was entered, the PPSC submit that “there is nothing improper about two prosecuting agencies making strategic decision on how best to proceed with their respective cases in order to further the overall public interest.”

100To the extent that the respondent seeks the evidence in order to infer that the trial judge on the drug charge would have excluded the evidence based on a Charter breach or breaches, Mr. Dykstra’s opinion on that issue or his opinion on the veracity of the police officers is irrelevant to any issue to be litigated in the murder trial. What the respondent seeks to argue is that an “anticipated ruling” for which no submissions were made and a “ruling” that was never made would create double jeopardy and/or abuse of process arguments. The murder trial judge is to determine, after hearing full submissions, whether admitting the other disreputable conduct evidence would result in double jeopardy or an abuse of process if the evidence is otherwise admissible.

101The same reasoning applies to the drug trial judge’s comments to the respondent. Ms. Afonso contends that there is no link between the comments and the staying of the proceedings. Even assuming that the trial judge would have excluded the evidence under s. 24(2) of the Charter, the s. 24(2) analysis on a charge of first-degree murder would be different.

102The fact that the respondent filed one segment of the PPSC Deskbook for prosecutors is not helpful. What the respondent wants to do is draw a link between the evidence called at the drug trial, Mr. Dykstra’s decision to stay the charge and the Deskbook. Even if the link could be drawn, Mr. Dykstra acted properly. He exercised his discretion and stayed the proceedings. In doing so, he is presumed to have acted properly.

103While Mr. Moon wanted the trial to proceed, once the reasonable prospect of conviction was gone, Mr. Dykstra was obliged to stay the charge. That he did not ask that an acquittal be entered, seek leave to withdraw the charge or presumably concede the Charter application is not determinative. Absent evidence of mala fides, the route he took was within his discretion. That he did not choose one of the other routes does not show he acted improperly.

The Respondent’s Position

104The respondent agrees that he seeks to inquire into the applicant’s exercise of prosecutorial discretion – i.e. why he stayed the drug charge. As the Supreme Court of Canada has held, the Crown is the only one who could provide the evidence. It was his decision to stay the drug charge. He is the only one who knows why he did so and whether his decision to stay was in accordance with the directives in the PPSC Deskbook. Accordingly, the evidence exists.

105The respondent wants to know why the applicant stayed the drug charge. If the decision was based on improper motives, such as to avoid a finding against the officers, that would show an oblique motive or that the respondent was treated unfairly. If, however, the decision was based on proper considerations, such as the nature of the police evidence and Mr. Dykstra concluded there was no longer a reasonable prospect of a conviction, regardless of whether he thought the police intentionally or unintentionally gave misleading or false evidence, it would remove one of the bases upon which the respondent could proceed with his opposition to the disreputable conduct application. As Mr. Moon put it, it would remove a brick but not the wall.

106In his response to the Provincial Crown’s other disreputable conduct application, Mr. Moon alleges that the police witnesses “lied or prevaricated when giving their evidence” in the drug trial. According to the excerpt of the PPSC’s Deskbook, where there has been misleading or false evidence intentionally or inadvertently given under oath, the prosecutor would be required to assess the impact of the testimony and whether there remains a reasonable prospect of conviction. In these circumstances, to admit the other disreputable conduct evidence would “offend both the principles of double jeopardy and would constitute an abuse of process.”

107To the extent that the PPSC relies on the Court of Appeal’s comments in Durrette regarding the accused’s burden to make a tenable allegation of mal fides, the reliance is misplaced. The Durette judgment involved a s. 11(b) Charter application and was not an subpoena issuance case. The issue was whether the applicant on the s. 11(b) application could call the Crown to explain why the prosecution proceeded with two preferred indictments and why Durette’s trial would proceed second.

108In addition, the respondent notes that while there is no requirement for the proposed witness to file an affidavit on an application to quash a subpoena, in the cases relied upon by counsel, including Finkle, affidavits were filed stating that the witness had no material evidence to give. Here, there is no similar affidavit from Mr. Dykstra.

109The respondent submits that the “ultimate relevance and materiality of the evidence” test is a substantive challenge, one that is determined by the motions court judge, with a full Application Record.” At that hearing the Attorney General of Ontario, not the PPSC, will have standing.

110Relying on R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, the respondent submits that there are two categories of abuse of process caught by s. 7 of the Charter: 1) prosecutorial conduct affecting trial fairness and 2) prosecutorial conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.” Under the first category, establishing prejudice is a requirement and establishing prosecutorial misconduct is not. Prosecutorial misconduct and improper motivation are two of many factors to be considered in determining whether there has been an abuse of process.

Analysis

111I agree with the respondent: the ultimate determination of whether the Provincial Crown’s other disreputable conduct application, if otherwise admissible, is an abuse of process or would involve double jeopardy is for the trial judge to determine. However, it is for the respondent to show on a balance of probabilities that the witness likely has material evidence to give on the matters in issue.

112The matters in issue are whether there is an abuse of process or double jeopardy. If the evidence is not material to those issues, no subpoena can issue. To that extent, the nature of the applications can be reviewed on certiorari. On the issuance of a subpoena or on a review of the issuance on an enhanced record, materiality cannot be determined in a vacuum.

113To the extent that numerous cases have emphasized that relevance and necessity are preconditions to calling opposing counsel (in the same prosecution), those considerations do not apply here. Mr. Dykstra is not opposing counsel in the murder trial. His appearance as a witness would not interfere with the trial as no new counsel would have to become involved. Accordingly, there is no requirement that the respondent show it is necessary to call the applicant. The criteria noted earlier for subpoenaing other witnesses applies.

114Prosecutorial discretion includes the decision whether to stay a proceeding. Exercises of prosecutorial discretion are only reviewable for abuse of process: see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36. In Anderson, the Supreme Court found, “an abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system:” at para. 50. The burden of establishing abuse of process on a balance of probabilities is on the party claiming the abuse: at para. 52. However, because of the unique nature of the discretion, that typically the crown will be the only party who knows why the decision was made, the Crown may be required to provide reasons justifying the decision. However, the Crown is required to do so, only where the party claiming abuse has provided a proper evidentiary basis: at para. 52.

115Given the presumption that prosecutorial discretion is exercised in good faith, requiring the party alleging abuse to establish a proper evidentiary basis is justified: at para. 55. In addition, prosecutors “are not bound to provide reasons for their decision, absent evidence of bad faith or improper motives:” see Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27.

116I turn next to whether there is anything from which I can conclude that Mr. Dykstra likely has material evidence to give. The divergent views on this issue are at least partly explained by what appears to be the respondent’s inconsistent positions between his written and oral submissions on this application and his written submissions on the other disreputable conduct application.

117From reading his factum on the certiorari application, the PPSC understandably concluded that the respondent was impugning Mr. Dykstra’s conduct - that the respondent was seeking evidence that he stayed the charge for an oblique or improper motive – to avoid a ruling and/or acquittal that would jeopardize the murder trial and/or that he was improperly influenced by the Provincial Crowns.

118However, in oral submissions, Mr. Moon said that he was not impugning Mr. Dykstra’s conduct. It was the Provincial Crowns’ conduct that he challenged. He regards Mr. Dysktra as an honourable man and does not believe that he did anything improper.

119Those oral submissions have to be read in the context of what the respondent has written. First, in his responding argument to the certiorari application he relies on R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344, where the Supreme Court of Canada held that “the principle of double jeopardy might also preclude a further trial if the Crown were to proceed unfairly in depriving the accused of a verdict.” The Court noted that unfair conduct would occur if the Crown stayed charges at a late stage in order to preclude the jury from acquitting the accused. Presumably, unfair conduct would also include a Crown staying a charge to preclude evidence being excluded based on Charter violations.

120Second, in his responding submissions to the other disreputable conduct application, Mr. Moon submitted:

The applicant submits that the prima face evidence of an oblique motive by the Crown in staying the prosecution, in conjunction with the current attempt by the Attorney General of Ontario to re-litigate the same issues after the stay was imposed constitute a clear abuse of process which permits this Honourable Court to grant relief under s. 24(1) of the Charter.

121Accordingly, the respondent is not impugning the integrity of Mr. Dykstra yet, he is alleging that there is a prima face case that Mr. Dykstra had an oblique motive in staying the charge. Further, he cites a test for an abuse of process where the Crown acted unfairly. The respondent is either impugning Mr. Dykstra’s conduct or, at the very least, trying to determine if he can find evidence that he acted improperly.

122What was said when the charge was stayed bears repeating, “I have concluded that there is no reasonable prospect of conviction anymore, and am going to invite the court to enter a stay pursuant to s. 579(1).” One can safely assume that Mr. Dykstra knew and knows why he stayed the proceedings. His reason or reasons exist. The question is whether the respondent has shown that they are material to an issue in dispute and whether it has been shown that the proposed witness has material evidence to give. That he might have material evidence is not sufficient.

123On this record, the respondent does not know Mr. Dykstra’s reasons for staying the proceedings. What he seeks is a discovery of the applicant to find out the reasons.⁸ Mr. Moon has a theory that he wants to advance and seeks to find out if Mr. Dykstra can assist. From his written submissions, he seeks evidence of unfair PPSC conduct, that the drug charge was stayed for an oblique motive. That he does not know the reason(s) and wants to discover Mr. Dykstra is illustrated in his written submissions on this application:

… if it be the case that the applicant as counsel for the PPSC conferred with counsel for the Attorney General of Ontario; and agreed that he would stay the prosecution because both agencies were fearful that an expected negative finding by the trial judge would effect the admissibility of the tainted evidence at a later homicide trial, there is no question but that such actions, jointly or severally could amount to an abuse of process. [Emphasis added]

124In his written submissions, the respondent suggests there is a prima face showing of an oblique motive and that the proceeding was stayed unfairly. The problem is that there is no evidence that the stay, an exercise of prosecutorial discretion was entered for an improper, oblique or unfair motive. There is no presumption that when the Crown exercises his or her discretion that it was done arbitrarily or for an improper motive. “The court is entitled to assume what is inherent in the process, that the Crown exercised its discretion properly:” Durette, at para. 37.

125Applying the judgment in Young, the respondent wants to ask Mr. Dykstra why he stayed the drug charge in case something might turn up to assist the abuse or double jeopardy arguments. It is only if there is evidence of an oblique motive or unfair conduct on behalf of the PPSC that the evidence would be material to the issue in dispute in the murder trial. If the evidence was that there was no oblique motive or unfair conduct, it would not advance the respondent’s abuse of process or other arguments because the court is entitled to assume the Crown exercised his discretion properly. It would only be evidence of mala fides, oblique motives or unfair conduct that advances the arguments the respondent seeks to advance.

126The effect of the respondent’s argument is similar to the one rejected by the Court of Appeal in R. v. Colborne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.) - that the possibility a witness might give material evidence is not enough to justify compelling a person to testify. It is not enough to justify issuing a subpoena that a witness “may have” material evidence to the issues in dispute.

127While Anderson, at para. 56, holds that the content of a Crown policy or guideline can be considered to determine whether the prosecutor exercised his or her discretion in accordance with the policy, I am not persuaded that the respondent’s reliance on one segment of the PPSC’s Deskbook assists in establishing that Mr. Dykstra likely has material evidence to give. If anything, it shows that there was a route within the guidelines upon which he could properly stay the proceedings.

128As emerged in submissions on this application, Mr. Dykstra abandoned an application to have the respondent’s statement ruled voluntary on the drug trial. This was due to a gap in the evidence that could not be explained. Filing one segment of what I accept is a lengthy document that might support the stay is of no assistance in establishing that the applicant likely has material evidence to give.

129With regards to if the evidence exists, it would be material, I agree with the PPSC: if Mr. Dykstra’s reasons for staying the charge involved his assessment of the officers’ evidence or what he thought the trial judge was going to conclude, his reasons would not be material. It would be the drug trial judge’s views that were material, not Mr. Dykstra’s. The motions judge’s view of the officers’ evidence is material. Similarly, whatever use the respondent seeks to make of the trial judge’s comments to the respondent after the request to stay the proceedings, I find that Mr. Dykstra’s reasons are not related to the comments that were made after his decision was made. It will be for the motions judge to determine what, if any use to make of the comments.

130The respondent has failed to establish on a balance of probabilities that Mr. Dykstra likely has material evidence to give. The respondent is fishing to see if he can find evidence to assist him in his abuse of process and double jeopardy arguments. While the concept of a fishing subpoena may have originated with subpoenas duces tecum, the Court of Appeal in Elliott found defence counsel was fishing when he was granted leave to call the Crowns from the Cumberland case with respect to their recollections of meetings. The respondent has not shown that Mr. Dykstra likely has that evidence to give.

Conclusion

131The subpoena is quashed. The respondent has failed to establish on the expanded record on the certiorari application that the applicant likely has material evidence to give on the issues in dispute.

Footnotes

1. 1The Trial Coordinator is also the Deputy Registrar and a clerk for the purpose of issuing subpoenas in the Superior Court of Justice.
2. 2While the subpoena directs Mr. Dykstra to attend in Kitchener where the pre-trial motions will be heard because of a courtroom shortage in Brampton, there is no dispute that the certiorari is properly returnable in Brampton.
3. 3While the PPSC, then as the Department of Justice, used a similar interview in R. v. Woods, [2006] O.J. No. 841 (S.C.J.) at para.6, it is not apparent from that judgment whether the subpoena issuer was told the purpose of the interview or given an opportunity to review the contents of the affidavit filed.
4. 4Since this application was heard, 119 subpoenas were issued with Provincial Crowns attending in court pending this ruling. While it has been a relatively short period of time, this figure supports the conclusion that more than two thousand subpoenas are issued annually out of the Brampton Superior Court for the Provincial Crowns. Four were issued to defence counsel. The PPSC has not sought any subpoenas since the hearing date.
5. 5Albeit after the submissions
6. 6I will refer to these individuals who are not lawyers as counsels’ agents in the reasons.
7. 7Whether the Crown would remain in court for the application would have to be determined by the application judge.
8. 8While there is authority that a preliminary inquiry involves a discovery component (R. v. Skogman (1984), 1984 CanLII 22 (SCC), 13 C.C.C. (3d) 161, at 171 (S.C.C.)), that is not the purpose of a subpoena at trial or for pre-trial motions.