R. v. Byers, 2017 ONSC 5386
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
TIMOTHY BYERS
Applicant
COUNSEL:
Sébastien Lafrance, for the Crown
Robert Isles, for the Applicant
HEARD: August 14, 2017
Reasons for decision
Overview
1The Applicant seeks an order compelling the trial judge to provide his personal copy of the Crown’s 11(b) materials (Crown’s Form 2 and the Crown’s response factum) which were filed during the course of his trial. The Applicant suspects that these materials may be different than the materials he received, and accordingly may assist in establishing a claim of “bias” on the part of the trial judge. If these materials will not be produced, the Applicant seeks a stay of proceedings. The Applicant takes the position that without these documents, his right to an appeal has been irretrievably lost.
2For the reasons outlined below, I dismiss the application.
Facts
The Section 11(b) proceeding on January 19, 2015
3On November 20, 2014, following a trial, the Applicant was convicted of four counts of unlawfully failing to file his tax returns contrary to section 238(1) of the Income Tax Act, R.S.C. 1985 (5th Supp.) c. 1. The sentencing was scheduled to proceed on January 19, 2016.
4On December 18, 2015, the Applicant served on the Crown his 11(b) application. The 11(b) application had a date returnable for January 19, 2016, the same date scheduled for the sentencing hearing.
5On January 11, 2016, the Applicant’s lawyer received a “Form 2 Response” from the Crown. The Form 2 Response was dated January 6, 2016 and sent to the Applicant’s counsel by fax. The Form 2 response was not signed and seemed incomplete in that it referenced correspondence that was not attached. On January 12, 2016, The Applicant’s counsel received the Crown’s response factum.
6On January 14, 2016, Kelly Jameson who works for the office of Mr. Isles (Applicant’s counsel), attended the Barrie court office to review the materials filed by the Crown “to determine whether the documents received by the Applicant’s lawyer were the same as the documents filed by the Crown with the court.” The court staff advised Ms. Jameson that the materials had already been provided to the trial judge. However, the trial coordinator was able to provide Ms. Jameson with copies of the correspondence which had been filed, and referenced in the Form 2. Applicant’s counsel already had all these emails as they were emails involving himself, the trial coordinator and the Crown.
7On January 19, 2016, prior to the hearing proceeding, Applicant’s counsel inquired of the trial judge about the materials that had been filed by the Crown. The trial judge confirmed he received the Form 2, as well as the respondent’s factum. The Court copy of the Form 2 was signed and dated January 10, 2016. The Court also had the string of emails referenced in the Form 2. Again, these emails were the same emails that were copied and provided to Applicant’s counsel by the trial coordinator on January 14, 2016.
8The 11(b) Application proceeded before the trial judge and was dismissed. The trial judge imposed a fine of $1,500 per count for a total of $6000 which was to be paid within 1 year.
Request for Responding Materials
9On January 22, 2016, the Applicant served and filed a Notice of Appeal of the trial judge’s decision on conviction, the fines imposed and the dismissal of the Section 11(b) Application. In pursuing the appeal, the Applicant sought to review the court file. More specifically, Applicant’s counsel contacted the court office and sought access to the Crown’s responding documents to the 11(b) application heard on January 19, 2016.
10In early March 2016, the court office wrote to Applicant’s counsel and advised that the trial judge had used these documents as his working copy. An additional copy of the materials would have to be obtained directly from the Crown as a “court copy” had not been filed.
11Mr. Isles followed up with a number of letters sent March 14, March 29, April 8, April 15, and April 22, 2016 asking for access to the responding materials filed by the Crown. He reiterated his request to access the court’s copy of the documents “to complete Mr. Byers’ appeal”.
12On April 26, 2016, Dana Bush, Supervisor of Court Operations, replied by fax to Mr. Isles and advised that his request was sent to the trial judge. A memorandum written by the trial judge was attached as part of the response. The memorandum advised Mr. Isles that during the process of the application, the trial judge made notes on his copy and took some material apart. It also indicated that the trial judge was not “in a position to vouch for its integrity, though he believed what he found was complete”.
Issues and Analysis
13There are two aspects to the application. First of all, the Applicant seeks an order from this Court directing the trial judge to produce his working copy of the Crown’s 11(b) response materials. These materials were filed with the Court and ultimately were used by the trial judge as his personal notes during the course of the hearing. The exact whereabouts of these documents and whether they are still in existence is currently unknown.
14In the alternative, if this Court cannot or will not order the return of the documents, the Applicant seeks a stay of the proceedings alleging that his rights to appeal have been irreparably impaired. He claims that access to these documents is somehow necessary to advance his position on appeal. More particularly, the Applicant claims to require these documents to establish on appeal that the trial judge was biased and/or reviewed materials that were not in the possession of the Applicant during the course of the hearing.
15The Applicant is not seeking access to the trial judge’s personal notes, but rather is simply seeking access to the documents that were filed. The Applicant wants to determine whether or not the judge may have looked at something “different” than what was originally provided to the defence. If the materials filed were meaningfully different that the documents disclosed to the defence, the fairness of the hearing could be impugned.
Is there an “air of reality” to the claim?
16The basis for the claim that the documents filed were somehow “different” than the materials served on the Applicant at the time of hearing is speculative at best. No doubt, under normal circumstances, any materials that are properly part of the court file should be returned to the file, and an order requiring such return would be granted.
17In the circumstances here, however, the materials sought may no longer be in existence. Even if they happen to be in existence, they would not be in their original form. They would have been taken apart, and will have the trial judge’s personal notations on them.
18I find that before ordering production in these circumstances, the Applicant’s allegation of impropriety must have an air of reality. As Justice Sopinka explained in R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, the requirement that the defence provide a basis for its demand for production serves to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming disclosure requests. Fishing expeditions and conjecture must be separated from legitimate requests for disclosure.
19In the circumstances here, I find that the Applicant’s request amounts to nothing more than a fishing expedition. Indeed, the Applicant’s request impugns not only the trial judge, but also the Crown. The Applicant essentially suggests by his request that the Crown knowingly filed materials with the Court substantially different than those provided to defence. It is for this reason that he requests the material directly from the trial judge rather than simply obtaining them from the Crown. Yet, there is no meaningful basis for this claim whatsoever. If the Applicant wishes to make such a claim, and ask this Court’s assistance in pursuing it, it must provide some basis for its allegation. In this regard, I adopt the comments of Justice Doherty in R. v. Larosa, 2002 CanLII 45027 (ON CA), at para.79, citing R. v. Durette, 1992 CanLII 2779 (ON CA) albeit in a slightly different context:
“the accused bears the burden of making a tenable allegation of mala fides on the part of the Crown. Such an allegation must be supportable by the record before the court, or if the record is lacking or insufficient, by an offer of proof. Without such an allegation, the court is entitled to assume what is inherent in the process, that the Crown exercised its discretion properly, and not for improper or arbitrary motives.
... [T]he allegation of improper or arbitrary motives cannot be an irresponsible allegation made solely for the purpose of initiating a “fishing expedition” in the hope that something of value will accrue to the defence.”
20In the circumstances here, to avoid further delaying and unduly complicating the matter, I would suggest that the Applicant obtain the materials sought directly from the Crown for the purposes of completing his record on appeal. I would ask that the Crown assist the Applicant by providing him with a copy. I have no doubt that the Crown would have retained a copy of the original material filed as part of its own file. Indeed, apart from the revised date, and the signature, it is unlikely that these documents will differ from those in possession of the Applicant.
21I will not grant the order directing the trial judge to produce his personal copy of the materials on the speculative possibility that they may have been different.
Disposition
22The application for an order requiring disclosure of the original materials is dismissed. The application for a stay on the basis of the “lost materials” is also dismissed.
Justice C.F. de Sa
Released: September 12, 2017
CITATION: R. v. Byers, 2017 ONSC 5386
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
TIMOTHY BYERS
Applicant
REASONS FOR DECISION
Justice C.F. de Sa
Released: September 12, 2017