Lake Simcoe Region Conservation Authority v. Brown

Citation: Lake Simcoe Region Conservation Authority v. Brown, 2017 ONSC 7439 Court File No.: CV-17-133754 Date: 2017-12-13 Superior Court of Justice - Ontario

Re: Lake Simcoe Region Conservation Authority v. Brown

Before: Justice J. Di Luca

Counsel: John A. Olah, Counsel, for the Crown Sylviette Brown, Agent for Murray Brown, Defendant

Heard: December 11, 2017

Endorsement

[1] Mr. Murray Brown is currently on trial before Justice of the Peace Seglins. He is facing five Provincial Offences Act charges under the Conservation Authorities Act and Regulation 179/66, relating to the alleged illegal dumping of fill at a property located at 23621 Park Road, RR #1, Pefferlaw, Ontario.

[2] The trial commenced in October 2016 before Justice of the Peace Seglins. It was scheduled to continue on December 11, 2017. Mr. Brown has been represented at trial by his agent and wife, Ms. Brown. With the Crown’s consent, Ms. Brown was permitted to appear on this motion and make submissions despite the fact that she is not a legal licensee.

[3] The Crown has brought an application seeking an Order quashing certain subpoenas issued by the Defendant. Subpoenas have been issued for Ken Hill, a solicitor for the Lake Simcoe Region Conservation Authority; Michael Walters, the head of the Lake Simcoe Conservation Authority; and Tom Hogenbirk, an expert in hydrology who has already testified over the course of three days at the trial.

[4] During submissions, Mr. Olah urged the Court to determine whether a Justice of the Peace sitting as a trial justice has jurisdiction to quash a subpoena. As I understand it, Justice of the Peace Seglins held that she did not have the authority to do so, thus necessitating this application in the Superior Court. I agree with Justice of the Peace Seglins, that a Justice of the Peace sitting as a trial justice does not have the jurisdiction to quash a subpoena. The quashing of a subpoena is a prerogative remedy that is granted on a jurisdictional review undertaken by way of certiorari before the Superior Court of Justice: see R. v. Maleki, 2006 ONCJ 401.

[5] That said, the Justice of the Peace is not without authority to deal with these types of issues. A trial justice has the power to control and manage the trial process. This includes the authority to demand a proffer relating to the proposed or anticipated evidence of a witness. Where the proffer does not satisfy the trial justice that the witness is likely to give material evidence, it is within the power of the justice to excuse the subpoenaed witness. In this regard, it is often a trial justice who will be in the best position to make this type of determination: see Re Chase and the Queen (1982), 1982 304 (BC SC), 1 C.C.C. (3d) 188 (B.C.S.C.), R. v. Johnson (1991), 1991 7174 (ON CA), 64 C.C.C. (3d) 20 (Ont.C.A.), and R. v. Darby, [1994] B.C.J. No. 814 (Prov.Ct.). Where a subpoena is issued under the Provincial Offences Act, the power to excuse a witness is found in s. 39(4) of the Provincial Offences Act which requires that a person who receives a summons to testify shall remain in attendance unless excused from attendance by the presiding justice. A similarly worded provision is found in section 700(2) of the Criminal Code of Canada, which has been interpreted to grant a trial judge authority to excuse a witness whose proposed evidence is irrelevant or otherwise an abuse of process: see R. v. Rashwan, [2004] O.J. No. 4747 (Ont. S.C.J.). In certain cases where the subpoena power is being abused, it may be appropriate for the trial justice to order that any further subpoena requests be made directly to the trial justice and not to a different justice who may not be aware of the full context of the proceedings.

[6] Turning to the subpoenas in question, the test on review of a subpoena is whether it is likely that the proposed witness can give material evidence: see R. v. Harris, 1994 2986 (ON CA), [1994] O.J. No. 1875 (Ont.C.A.). The onus of meeting this test falls on the party seeking to call the witness.

[7] I was not provided with the record before the issuing Justice. That said, it is often the case that subpoenas are requested and issued without strict adherence to the requirement for detailed supporting evidence. In any event, I did receive Ms. Brown’s submissions as to the potential relevance of the proposed witnesses. While Ms. Brown offered to make her submissions under oath so that I would have “evidence” before me, I declined the invitation.

[8] I will start with Tom Hogenbirk. As mentioned, Mr. Hogenbirk has already testified on the trial. Indeed, he testified for three days. It now appears that Mr. Brown wishes to recall him on additional issues. The Crown argues that the subpoena on Mr. Hogenbirk, which asks him to bring with him certain documents, is effectively an attempt to circumvent rulings made at trial in relation to requests for production. The Crown further argues that any relevant evidence from this witness has already been given.

[9] Where the defence seeks to recall a witness who has testified at the behest of the Crown, there is case law that suggests that the leave of the Court is not required: see R. v. Pan, 2014 ONSC 5932 at para. 31 to 45 and R. v. Cook, 1960 449 (AB CA), [1960] A.J. No. 34 (C.A.). That said, the trial management power is engaged and the Court is obviously entitled to curtail clearly irrelevant or unnecessary evidence should that be the case. As well, given the sparseness of the record before me, I am of the view that the Justice of the Peace at trial is better positioned to determine whether the request to bring documents listed in the subpoena is an attempt to circumvent a prior ruling relating to production. I decline to quash the subpoena on Mr. Hogenbirk. However, it strikes me that before he is required to bring the documents listed in the subpoena to Court, the Justice of the Peace should hear submissions and rule on whether the items listed are already addressed by early rulings/orders.

[10] In relation to Mr. Walters, when pressed in submissions to explain the relevance of his proposed evidence, Ms. Brown indicated that she anticipated calling Mr. Walters to give good character evidence in support of Mr. Brown. In this regard, Ms. Brown points to a memorandum and a letter dating back to the 1990’s and argues that these documents show that Mr. Walters has relevant evidence to give in this regard. I disagree. These documents do not support a finding that Mr. Walters is likely to have relevant evidence to give. The subpoena in relation to Mr. Walters is quashed.

[11] Lastly, in relation to Mr. Hill, I note that Mr. Hill is a solicitor for the Lake Simcoe Region Conservation Authority. As I understand it, Mr. Hill prosecuted Mr. Brown on an earlier matter and was also allegedly involved in making decisions relating to disclosure in relation to this matter. According to Ms. Brown, Mr. Hill’s involvement with the proffering of certain documents relating to ownership of the property in question lies at the core of his proposed testimony. As best as I can understand it, title search documents were tendered at trial. It was then discovered that these documents were incorrect and/or incomplete. They were subsequently withdrawn from evidence. Ms. Brown seeks to call Mr. Hill to delve into this issue. In my view, this is a mere fishing expedition and I am not satisfied, even leaving aside issues of privilege, that Mr. Hill is likely to give any relevant evidence. As a result, I quash the subpoena that has been issued for him.

Justice J. Di Luca

Date: December 13, 2017