Court File and Parties

COURT FILE NO.: DC 541/16 DATE: 20170223 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bradley John Albon, Applicant/Respondent in the Motion AND: The Attorney General of Ontario, Respondent/Moving Party in the Motion

BEFORE: Kiteley J.

COUNSEL: Alan Young, for the Applicant Alexander Alvaro and Daniel Guttman, for the Respondent

HEARD: in writing

Endorsement

Background

[1] The Respondent seeks leave to appeal to the Divisional Court from the order of Pollak J. dated October 24, 2016. 2016 ONSC 4842 The reasons do not include the context in which the motion was before her.

[2] On December 1, 1983 the body of a 15 year old girl was found on the edge of Lake Mohawk in Brantford. The police interviewed Mr. Albon who was a 14 year old friend of the deceased. He offered an alibi that was accepted and confirmed by the police, and no charges were laid against him. Three years later, Mr. Albon was with an older man named Paul Fitzgerald in a motel room, taking drugs and drinking alcohol. In the middle of the night, Mr. Fitzgerald called a lawyer to drive Mr. Albon to the police station where he confessed to the murder. He pleaded guilty to manslaughter in 1986 and at the age of 17 was sentenced to 10 years in prison. Mr. Albon appealed the sentence and in 1989 the Court of Appeal granted the appeal and reduced his sentence to 7 years. Mr. Albon served his sentence.

[3] I recognize that counsel for Mr. Albon introduced evidence on the Application as to the nature of the relationship between him and Mr. Fitzgerald, the circumstances under which he was taken to the police station, the police investigation, and efforts to obtain disclosure. On this motion for leave to appeal I need not resolve those differences.

[4] In 2012 the Innocence Project undertook a re-investigation of Mr. Albon’s conviction for manslaughter. According to counsel for Mr. Albon, the application record includes 2,633 pages containing numerous affidavits from the Applicant and from Innocence Project caseworkers who outlined in detail the efforts made by the Applicant in the past 5 years to secure disclosure.

[5] In paragraph 1 of the endorsement, the motion judge refers to the thrust of the Application.

[6] Counsel for the Respondent brought a motion seeking an order striking out the notice of application and dismissing the application in whole or in part on the following specific grounds:

(a) the Applicant does not have standing to ask for the declaration sought as he has not exhausted his rights of appeal;

(b) the Superior Court of Justice should decline to exercise its discretion to consider a constitutional declaration where the relief sought is available pursuant to existing legislation, namely s. 678(2) of the Criminal Code;

(c) a constitutional application cannot be brought in service of a Ministerial Application that has not already been brought to the federal Minister of Justice under s. 696.1(1) of the Criminal Code;

(d) in the alternative, convicted offenders who have completed their sentence have no Charter right to material previously disclosed before their trial and have no Charter right to “production”.

Decision of the Motion Judge

[7] The seven paragraph endorsement includes six paragraphs setting out the background and the positions taken by counsel. Paragraph 6 includes the following:

I agree with the submissions of the Applicant that the AGO has not met the criteria for this motion which I have set out above. While it may be that the AGO has many valid arguments on the merits of the Application, I do not find that it is “plain, obvious and beyond doubt” that the application could not succeed.

Positions Taken by Counsel on Motion for Leave

[8] Counsel for the moving party relies on rule 62.02(4)(b) and takes the position that there is good reason to doubt the correctness of the decision of the motion judge in the following respects:

(a) she failed to give sufficient reasons for her decision, as required in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41;

(b) she either failed to analyze at all the issue of standing raised by Ontario or, in the alternative, applied the wrong legal test in determining standing by failing to recognize that the applicant had not met his burden of demonstrating he has direct or public interest standing to raise the issue of convicted persons who are currently incarcerated or have exhausted their appeals;

(c) she erred in holding in a bare conclusion that it was not plain and obvious that convicted offenders who have fully served their sentence do not have a s. 7 Charter right to “orders of production”; and

(d) she either failed to analyze the issue of prematurity or, in the alternative, clearly applied the wrong legal test in determining prematurity.

[9] Counsel for the moving party also takes the position that the inadequate reasons satisfies the public importance element of the test in rule 62.02(4)(b). Furthermore, by the nature of the Application and the Notice of Constitutional Question, counsel submits that the issues raised are of public importance beyond the interests of the immediate parties.

[10] As indicated below, counsel for the moving party has articulated the questions that should be submitted if leave is granted.

[11] Counsel for the Applicant/Responding Party takes the position that while the “decision is brief and laconic” it demonstrates an understanding of the relevant legal test and the positions advanced by both parties and it adhered to the well-established “plain and obvious test”. Furthermore, counsel takes the position that while the ultimate substantive issue of post-conviction disclosure and production is one of public significance, the ancillary question of whether this case can even be litigated is of interest to the parties alone and not to the public.

Test for Leave to Appeal

[12] Leave to appeal should not be easily granted. Counsel for the moving party must establish both elements of the conjunctive test in rule 62.02(4)(b).

Analysis

[13] The Supreme Court held in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 that the reasons must be sufficient so that the parties know why they won or lost on the issues argued so as to satisfy the parties’ “functional need to know”.

[14] The endorsement by the motion judge refers to the “plain and obvious test” but it is conclusory, not explanatory. It provides no rationale on the extensive record before that court for the dismissal of the motion. I agree with counsel for the moving party that the reasons are inadequate. I agree that there is good reason to doubt the correctness of the decision on the basis of inadequate reasons.

[15] Furthermore, not all of the issues before the motion judge as listed in paragraph 2 of her endorsement were subject to the “plain and obvious” test. As counsel for the moving party had submitted, the issue of striking parts of the Application for disclosing no reasonable cause of action was subject to that test but not the issues of standing or prematurity. The introduction to paragraph 4 of her endorsement indicates that “the parties agree that the principles listed are applicable to a motion to strike a claim as disclosing no reasonable cause of action” but the motion judge omitted the applicable principles on the issues of standing and prematurity and she failed to analyze those issues in the context of the proper principles. In order to grant leave, I do not need to find that the decision was actually wrong; the test is met if the moving party establishes that the correctness of the order is open to “very serious debate”. I agree with counsel for the moving party that there is good reason to doubt the correctness of the decision.

[16] I also agree with counsel for the moving party that the inadequacy of reasons meets the public interest element of the test in rule 62.02(4)(b). In addition, the Application raises important Charter issues that go beyond the interests of the immediate parties. Whether some or all of the Application is viable at the pleadings stage is an important public interest issue.

[17] In the reply factum, counsel for the moving party referred to Sahota v. Sahota where at paragraph 9 Molloy J. outlined the options available when leave is granted on the basis of the absence of reasons. At paragraph 10, she suggested that it might be more appropriate for the parties to simply argue this motion afresh before a single motion judge of the Superior Court, thereby preserving all of the usual routes of appeal for all parties. I agree that that might be the most appropriate course of action. If the parties were to agree, I would issue a consent order simply setting aside the decision of the motion judge dated October 24, 2016 and order a new motion date. I will remain seized for this limited point only, and I will proceed only if all parties agree. If the parties are in agreement, I may be contacted through the Divisional Court office by no later than March 9, 2017.

ORDER TO GO AS FOLLOWS:

[18] Leave to appeal is granted on the following questions:

(a) Does Mr. Albon lack standing for certain aspects of his Application?

(b) Should Mr. Albon’s Application be dismissed because it is premature as the relief sought is potentially available through an alternate route (e.g. through s. 683 or 696.1 of the Criminal Code)?

(c) Is it plain and obvious that convicted offenders who have fully served their sentence do not have a s. 7 Charter right to “orders of production”?

[19] No costs of this motion for leave.

Kiteley J.

Date: February 23, 2017