Court File and Parties

Court File No.: CV-18-601248-0000 Date: 2018-09-17 Ontario Superior Court of Justice

Between: Ali Mohtashami and Babak Sarshar, Applicants – and – The City of Toronto, Respondent

Counsel: W.A. Chalmers, for the Applicants M.J. Sims and Brennagh Smith, for the Respondent

Heard: August 29, 2018

Reasons for Judgment

Schreck J.:

[1] Only in rare cases will courts allow criminal or quasi-criminal proceedings to be delayed or fragmented by interlocutory review. The applicants, who are not defendants but potential witnesses at a trial on charges laid under the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”), submit that this is one of those rare cases. It is not.

[2] This is an application for certiorari to have summonses to witnesses to testify at a POA trial quashed. The applicants admit that they are likely to give material evidence at the trial, but claim that they were tricked into providing the authorities with the information that they relied on to obtain the summonses. They say that compelling them to testify would be an abuse of process. The applicants wish to make submissions in support of their position, but only after they have compelled five city employees to be examined pursuant to Rule 39.03 of the Rules of Civil Procedure.

[3] The respondent prosecutor, the City of Toronto (“the City”), submits that the application should be summarily dismissed. It takes the position that the application is without merit and the trial in the Ontario Court should be permitted to proceed without further interruption. I agree with the City. The application is dismissed.

I. Procedural History

A. The Charges

[4] The genesis of these proceedings was the removal of 40 trees by contractors working on a development of some land in Toronto. On January 20, 2017, Informations were laid pursuant s. 23 of the POA charging a number of defendants with multiple counts of having violated various municipal by-laws which prohibited the removal of trees without a permit. The charges were laid against the contractors, Mykhail Baehr and 2432476 Ontario Inc. (“476”) (“the defendants”) as well as the developer, 2341853 Ontario Inc. (“853”). In June 2017, the charges against 853 were withdrawn. Shortly thereafter, the applicants, Ali Mohtashami and Babak Sarshar, who are officers of 853, were served with summonses pursuant to s. 39 of the POA requiring them to attend the trial in the Ontario Court of Justice in order to give evidence and produce certain documents.

B. The Application to Quash the Summonses

[5] On June 10, 2018, the applicants served and filed a Notice of Application in this court pursuant to s. 141 of the POA seeking to have the summonses quashed on the basis that the manner in which they were obtained constituted an abuse of the court’s process. In particular, it was alleged that city officials had misled the applicants by asking them to provide information and documentation without advising them that they were going to be charged. The alleged impugned conduct is summarized in the Notice of Application in the following terms:

The Authority Persons, in particular Supervisor Moffatt, tricked the Applicant Representatives into providing information and documentation to the Authority Persons purportedly in the latter’s capacity as representatives of the City [Urban Forestry Department] for the purpose of satisfying the [Urban Forestry Department Notice of Approval Conditions] but, in reality, in support of laying the 1853 Charges against 1853 Inc.

C. The Motion for a Stay in the Trial Court

[6] Three days later, both of the remaining defendants filed Notices of Motion in the Ontario Court of Justice seeking stays of proceedings on the basis of an abuse of process. The alleged abuse of process was the conduct of City officials in obtaining information and documentation from the applicants while misleading them. Large portions of the contents of the defendants’ Notices of Motion and the applicants’ Notice of Application are word-for-word identical.

II. Analysis

A. The Applicants’ Request for an Adjournment

[7] In response to the applicants’ Notice of Application, the respondent filed a volume of material. Included in it was an affidavit by Amanda Ross, a lawyer employed by the City. Ms. Ross had no involvement in the case. Her affidavit is based entirely on information provided to her by other people and attaches a number of relevant documents as exhibits.

[8] As noted earlier, the respondent brought a motion to have the applicants’ application summarily dismissed on various bases, which are outlined later in these reasons. The applicants sought to adjourn the hearing of the respondent’s motion in order to supplement the record with further evidence. In particular, the applicants sought to (1) cross-examine Ms. Ross on her affidavit; (2) examine five City officials pursuant to Rule 39.03; and (3) obtain a recording or transcript of the appearance before a Justice of the Peace which resulted in the summonses being issued. It is the applicants’ position that the issues on its application cannot be determined without the evidentiary record they intend to create.

[9] I denied the request for an adjournment. In my view, the evidence was not necessary if, for the purposes of the motion, it were assumed that everything alleged in the applicants’ Notice of Application was proven. In other words, I was prepared to consider the respondent’s motion taking the applicants’ case at its highest.

B. The Issue

[10] The summonses in this case were issued pursuant to s. 39(1) of the POA, which provides as follows:

39 (1) Where a justice is satisfied that a person is able to give material evidence in a proceeding under this Act, the justice may issue a summons requiring the person to attend to give evidence and bring with him or her any writings or things referred to in the summons.

[11] The applicants concede that they are “able to give material evidence” at the defendants’ trial. However, they maintain that the summonses ought to nonetheless be quashed because of the manner in which the prosecution became aware of what the applicants knew. As outlined earlier, it is their position that the City officials tricked them into providing information by leading them to believe that the information was being provided in order to receive a Notice of Approval Conditions when, in fact, the City intended to charge them and was seeking the information in order to build a case against them. As mentioned, for the purposes of determining this matter, I am prepared to assume the truth of these allegations.

C. Whether the Applicants Can Seek Relief in the Trial Court

[12] The respondent submits that the application should be summarily dismissed because the applicants can seek the relief they want in the trial court and, as a result, this court should exercise its discretion to refuse to hear the application. While the trial court cannot grant certiorari, it can excuse witnesses pursuant to s. 39(4) of the POA, which effectively leads to the same result.

[13] I would not dismiss the application on this basis for two reasons. First, I have considerable doubt whether the applicants would have standing to bring such an application in the trial court. I have no doubt that the trial court can excuse witnesses pursuant to s. 39(4) of the POA if the witness is not likely to give material evidence: Lake Simcoe Region Conservation Authority v. Brown, 2017 ONSC 7439, at para. 5; R. v. Rashwan, [2004] O.J. No. 4747 (S.C.J.), at paras. 7-14. I have some doubt, however, whether s. 39(4) would allow the trial court to excuse a witness on the basis that compelling the witness to testify will somehow affect the integrity of the justice system or render the proceedings unfair. Such arguments can, of course, be raised by the parties, as I will discuss in more detail later in these reasons.

[14] Second, if the applicants did bring such an application and were unsuccessful, they would have no right of appeal. Any review of the decision would have be through an application for certiorari pursuant to s. 141 of the POA, in which case the matter would once again return to this court, possibly interrupting the trial proceedings for a second time. In my view, given that there is a sufficient record on which to make a final determination of the issue, it is in the interests of justice that I do so.

D. Prejudice to the Applicants

[15] The applicants allege that they were essentially tricked into providing information to the authorities, whom they did not realize were investigators in relation to whom they were in an adversarial position. If the state intended to use the information against the applicants at a trial in which they were charged with offences, it may be that they would be able to make some claim of an infringement of their right to silence akin to that described in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, at paras. 95-97. I need not draw any conclusions in this regard, although I note that there is no suggestion that they were statutorily compelled to share information with City officials, unlike the situation in Jarvis. However, the applicants are not charged and the state does not wish to use the information against them but, rather, against somebody else.

[16] Other than inconvenience and the possible unpleasantness of having to attend court and answer questions, I have some difficulty understanding how the summonses cause any prejudice to the applicants. Their counsel suggested in oral argument that there was a concern that they may incriminate themselves. I do not see how that could occur, given that they are entitled to the protection of s. 9 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 and s. 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5 as well as the even more robust protection of s. 13 of the Canadian Charter of Rights and Freedoms.

E. The Residual Discretion to Refuse a Summons

[17] As noted, the applicants concede that the statutory threshold for the issuance of a summons has been met in that they are “able to give material evidence.” However, establishing that the threshold has been met does not guarantee the issuance of a summons as the court retains a residual discretion to decline to issue it. This was explained by Watt J. (as he then was) in discussing the similarly-worded s. 698(1) of the Criminal Code, R.S.C. 1985, c. C-46 in Finkle v. Ontario, [2007] O.J. No. 3506 (S.C.J.), at para. 74:

As we saw earlier, the language in section 698(1) is permissive, not imperative. Where the conditions precedent have been met, the threshold surmounted, a subpoena may be issued. A residuum of discretion is reposed in the issuing authority, unshaped by any enumerative or exhaustive list of factors.

[18] The residual discretion to refuse to issue a summons or subpoena is most commonly exercised in cases where one party seeks to call counsel for the other party as a witness. Compelling counsel to testify is disruptive of the trial process. As a result, showing that counsel is able to give material evidence is insufficient and the courts have added a necessity requirement, that is, a requirement that the party seeking to compel the witness demonstrate that the evidence cannot come from some other source: R. v. Elliott (2003), 181 C.C.C. (3d) 118 (Ont. C.A.), at paras. 114-116; R. v. 1504413 Ontario Ltd., 2008 ONCA 253, 90 O.R. (3d) 122, at paras. 13-15.

F. Abuse of Process

(i) Abuse of Process as a Basis to Quash a Summons

[19] The applicants submit that the summonses should be quashed on the basis that compelling them to testify would constitute an abuse of process that would negatively affect the integrity of the administration of justice. The applicants rely in particular on two cases where a party sought to compel counsel (or in one case, an articling student) to testify as a witness in support of their submission that the summonses in this case should be set aside on the basis that their issuance constituted an abuse of process. In DeFrancesco v. Mldandenoff (1997), 34 O.R. (3d) 464 (Gen. Div.), at para. 35, the principal of a corporation charged with a provincial offence obtained witness summonses for an articling student at a law firm representing defendants in related proceedings as well as the prosecutor in those proceedings. The Court set aside the summonses on the basis that neither witness had material evidence to give. However, the Court also stated (at para. 35):

… [T]he record on these applications causes one to have grave doubts about the bona fides of the respondent’s applications to the Justice of the Peace on February 7, 1996. Indeed, those applications have an aura of abuse of the court’s process.

[20] The second case the applicants rely on is Sanford (Private Prosecutor) v. Ontario Realty Corp. (2003), 2 C.E.L.R. (3d) 288 (Ont. S.C.J.), where the Court held, in the context of a POA matter, that “an abuse of process may provide an acceptable basis upon which to quash a summons and information issued by a justice of the peace” (at para. 44). I note, however, that the decision in that case related to a summons to a defendant issued under s. 22 of the POA, not a summons to a witness.

[21] While the cases relied on by the applicants are distinguishable from the case at bar, I accept that a court’s residual discretion to refuse to issue a summons to a witness or to quash a summons on an application for certiorari can include considerations about the integrity of the administration of justice: Finkle, at paras. 75-80; R. v. Dunn, 2011 ONSC 4263, 110 O.R. (3d) 458, at para. 32. It seems, however, that the focus in such cases will be on whether the evidence of the witness who has been subpoenaed is available from some other source: Finkle, at para. 79; Elliott, at paras. 114-115. There is nothing in the record in this case to suggest that any such alternative source is available.

(ii) The Trial Court is the Best Forum to Determine the Issue

[22] For the purposes of this application, I express no opinion on the applicants’ submission that compelling them to testify would affect the integrity of the justice system. I point out, however, that any negative effect on the administration of justice that would result from compelling the applicants to testify would take place in the context of the defendants’ trial. Whether and to what extent the administration of justice’s integrity would suffer would depend on a number of factors, including the importance of the applicants’ evidence to the prosecution’s case and the seriousness of the charges. As a result, the best forum in which to evaluate the harm, if any, that would be caused to the administration of justice is the court in which the defendants are being tried. The judicial officer presiding over those proceedings is in a far better position than is this court to evaluate the claim that compelling the applicants to testify would affect the administration of justice. As noted earlier, the defendants have filed a motion seeking a stay of proceedings on this basis.

[23] The applicants point out that they are not parties in the trial court, did not choose the counsel who is advancing the argument and have no say in the arguments that will be made. While this true, I note that the materials filed by the defendants are for the most part identical to those filed by the applicants. More importantly, the applicants have no real personal stake in the outcome. As explained earlier, the prejudice of compelling the applicants to testify, if any, would be to the administration of justice. While all citizens have an interest in upholding the integrity of the administration of justice, it does not follow that they have a right to participate in proceedings where that integrity is at issue, much less a right to select the counsel who will advance the arguments.

(iii) The Abuse of Process Doctrine Protects Accused Persons

[24] In this regard, I note that the abuse of process doctrine is, for the most part, concerned about the protection of accused persons, as was explained by Code J. in Ahmadoun v. Attorney General (Ontario), 2012 ONSC 955, 281 C.C.C. (3d) 270, at para 6:

… [T]he meaning of “abuse of process” in criminal law refers to an extraordinary judicial power to stay proceedings in order to protect the accused from serious misconduct by the executive branch of government. The root case in Canada remains R. v. Young (1984), 13 C.C.C. (3d) 1 at 31 (Ont. C.A.) where Dubin J. A., as he then was (Howland C. J. O. and Martin J. A. concurring) stated:

I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. It is a power, however, of special application which can only be exercised in the clearest of cases. [Emphasis added].

The Supreme Court of Canada unanimously adopted this narrow formulation of the “abuse of process” power in R. v. Jewitt (1985), 21 C.C.C. (3d) 7 at 13-14 (S.C.C.). Dickson J., as he then was, gave the Judgment of the court and described the power as:

... a judicial discretion to enter a stay of proceedings to control prosecutorial behaviour prejudicial to accused persons ... [Emphasis added].

[Emphasis in original].

[25] It is the defendants, not the applicants, whose rights are affected by the trial proceedings. If the conduct of the City authorities somehow compromised the integrity of the trial proceedings, a matter on which I will express no opinion, then it is the defendants who will suffer prejudice as a result of the state misconduct. If a remedy is available, it is they who are entitled to it.

[26] Counsel for the applicants has provided me with numerous cases explaining the doctrine of abuse of process. The existence of such a doctrine is hardly contentious. It is well established: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309. However, in all of the cases provided, it was the accused who sought a remedy for an abuse of process resulting from state misconduct. Even in the one case relied on by the applicants in which the state misconduct at issue related to the way in which witnesses were treated, R. v. Morgan, 2013 ONSC 6462, the issue was whether the misconduct should result in a remedy for the accused.

G. The Need to Prevent Delay and the Fragmentation of Proceedings

(i) Prerogative Relief Should be Granted Only Rarely

[27] Quite apart from the merits of the application, there is an additional reason why, in my view, this court ought to exercise its discretion to refuse certiorari. It is well established that interlocutory prerogative relief should be granted only rarely in criminal or quasi-criminal proceedings. In R. v. Duvivier (1991), 64 C.C.C. (3d) 20 (Ont. C.A.), at p. 24, Doherty J.A., after reviewing a number of cases on this issue, stated:

Those same cases identify the policy concerns which underline the predilection against resort to the superior court for relief during criminal proceedings. Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. A similar policy is evident in those cases which hold that interlocutory appeals are not available in criminal matters. [Citations omitted].

[28] Although Duvivier was a criminal case, the same principles apply to proceedings under the POA: R. v. 1353837 Ontario Inc. (2005), 74 O.R. (3d) 401 (C.A.), at paras. 18-23; R. v. Arcand (2004), 73 O.R. (3d) 758 (C.A.), at paras. 12-15; R. v. Felderhof, [2002] O.J. No. 4103 (S.C.J.), at paras.12-16, aff’d , 68 O.R. (3d) 481 (C.A.).

(ii) The Effect of R. v. Jordan

[29] The principles set out in Duvivier and the other cases cited have taken on even greater importance in light of the Supreme Court of Canada’s decisions in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659. In those cases, the Court recognized that there is a longstanding problem of delay in the Canadian justice system resulting from a “culture of complacency” and that a change in this culture requires the participation of all actors in the system, including the courts, who must play a role in effecting change: Cody, at para. 37. As noted in Jordan at para. 139, “all courts … must be mindful of the impact of their decisions on the conduct of trials.”

[30] Jordan applies to proceedings under the POA, which should be as expeditious as in a criminal court, if not more: York (Regional Municipality) v. Tomovski, 2017 ONCJ 785, 400 C.R.R. (2d) 219, leave to appeal refused 2018 ONCA 57. At the time of the hearing of this application, over 18 months had passed since the charges in this case were laid, which is already in excess of the ceiling set out in Jordan.

[31] The applicants wanted to adjourn this matter in order to cross-examine the affiant of what is essentially an “information and belief” affidavit filed by the City. They wish, as well, to conduct examinations of no fewer than five witnesses. In the meantime, the trial cannot proceed. This Court cannot and will not allow a trial to be delayed to this extent so that witnesses who have no real interest in the proceedings and who are at no risk of suffering any prejudice can embark on a Quixotic quest to remedy some perceived unfairness.

III. Disposition

[32] The application is dismissed.

Schreck J.

Released: September 17, 2018.