Charley v. The Queen, 2017 ONSC 5752
CITATION: Charley v. The Queen, 2017 ONSC 5752
COURT FILE NO.: CR-16-4000004
DATE: 2017-09-27
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
Ammaan Charley, Applicant
– and –
Her Majesty The Queen, Respondent
BEFORE: E.M. Morgan J.
COUNSEL:
David Midanik, for the Applicant
Tracey Vogel and Andrew Weafer, for the Respondent
Claudia Brabazon, for the A.G. Ontario (Constitutional Law Branch)
Adrien Iafrate, for Community Safety and Correctional Services (Ontario)
HEARD: September 27, 2017
Habeas corpus and charter APPLICATIONs
parties and sequence
[1] On January 27, 2017, after a two-week trial before me as judge alone, I convicted Ammaan Charley of armed robbery, aggravated assault, and a firearms offense. A sentencing hearing has not yet taken place.
[2] Mr. Charley has brought a number of different applications challenging the legality and constitutionality of his incarceration and its potential impact on sentencing. His counsel has put the Attorney General of Ontario and the Attorney General of Canada on notice of the constitutional questions he is raising.
[3] The applications require an evidentiary record, some of which comes from Mr. Charley but much of which must of necessity come from government. Mr. Charley’s counsel initially sought to bring an application to compel production from both tiers of government; now, however, Ontario is working with him to produce materials on a cooperative basis through counsel for the Ministry of the Attorney General Constitutional Law Branch and counsel for the Ministry of Community Safety and Correctional Services. Counsel for the Attorney General Canada has also corresponded with counsel for Mr. Charley. She takes the position that the federal Attorney General is not a proper party to this application and is not compelled to respond. She suggests in her letter that Mr. Charley make an application under the Access To Information Act in an effort to obtain the production that he seeks for his record.
[4] Mr. Charley initially brought this application against the prosecuting Crown as well as against both attorneys general, the Ministry of Community Safety and Correctional Services and various correctional officials and institutions. This constitutional challenge arises in the midst of a criminal proceeding and, in my view, of these the only proper and necessary party is the prosecuting Crown.
[5] The other named parties are properly either witnesses or, in the case of the attorneys general should they choose to participate, interveners. Counsel for the Attorney General of Ontario has appeared today along with the counsel for the Respondent – i.e. the Crown law office who have prosecuted this case all along – and that is appropriate since the Attorney General of Ontario is a proper intervener. Having received a Notice of Constitutional Question, counsel for the Attorney General of Canada could do the same, although that is up to the federal government’s discretion. The application should be (and here is) re-styled to reflect that the Crown and Mr. Charley are the only two parties and any other government counsel that participates does so on behalf of an intervener.
[6] To the extent that Mr. Charley’s counsel requires production from the Attorney General of Canada, what he is seeking is production from a third party. The proper court procedure for that is an application for third party production pursuant to R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411. That application should be brought at the earliest possible time, as some of the materials that may ultimately be produced as a result of that application may be useful in the record of the Charter applications.
[7] For now, the sequence of applications and hearings is as follows:
- O’Connor application regarding production from the government of Canada
- Habeas corpus application addressing legality of Mr. Charley being held in maximum security conditions
- Stay of proceedings/habeas corpus application under section 24(1) of the Charter addressing Mr. Charley’s rights under section 7 of the Charter and the constitutionality of prisoners being held in prolonged lockdown and in maximum security without a classification process or subsequent review process
- Constitutional challenge to section 719(3) of the Criminal Code with respect to the amount of credit given for time served in pre-trial detention
- Sentencing hearing
[8] This sequence is, of course, something of a moving target. Subsequent applications or hearings may change or become unnecessary depending on the result of prior applications. For now, however, I am hopeful that this sequence puts some structure on the array of proceedings that have been initiated here.
Morgan J
Date: September 27, 2017