Court File and Parties

BARRIE COURT FILE NO.: CR-17-228-00 DATE: 20190314 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NOAH POISSON Defendant

Counsel: Sarah Tarcza, for the Crown Leo A. Kinahan, for the Defendant

HEARD: January 21, 22, and February 5, 2019

Reasons for Decision on Abuse Application

de Sa J.

Overview

[1] The accused seeks a stay of proceedings as it pertains to the charge of excess blood alcohol or in the alternative, an exclusion of evidence, being the blood samples and medical records of the accused, Noah Poisson, and any derivative evidence flowing therefrom due to an alleged violation of his section 7 Charter right to a fair trial.

[2] The accused argues that the conduct of the Crown’s witnesses, Rachel Anderson and Ronald Spiker, in communicating with each other in breach of this court’s order (order excluding witnesses), justifies the remedy sought.

[3] After hearing arguments on the issue, I dismissed the application finding that the accused’s section 7 rights were not violated. These are my reasons.

Summary of Facts

[4] The trial commenced on January 14, 2019. On January 21, 2019, Mr. Ronald Spiker testified on behalf of the Crown. Mr. Spiker was present when Mr. Poisson’s blood samples were sealed by police on August 18, 2016.

[5] During the course of his evidence, Mr. Spiker was examined and cross-examined on protocol for storage of samples and persons with access to the laboratory. His evidence was concluded on the same date.

[6] Ms. Rachel Anderson was the next witness to testify. She was the lab technician that drew the blood from Mr. Poisson and analyzed it. Her evidence was adjourned at the end of the day to continue in-chief the following morning and thereafter for cross-examination.

[7] The following morning, Crown Counsel, Ms. Tarcza alerted counsel for the accused that two issues had arisen. First, Ms. Anderson advised that she wanted to clarify an answer she had given the day before regarding the samples. Second, Ms. Anderson advised that she had received a text message from Mr. Spiker that she was asked to provide to the Crown which she did.

[8] In the text message sent to Ms. Anderson, Mr. Spiker stated:

“Hi Rachel. Could you let the crown attorney read this text. The defence is going to suggest that someone could have opened the blood and spiked or tampered with it. First, no staff member would ever consider this. Second, no one possess the knowledge on how to accurately spike the blood tubes and not hemolyze them. Third, the fridge is along an open wall clearly open to the lab staff (anyone opening this fridge would be questioned by chemistry staff. And fourth, housekeeping has no idea what’s in the fridge and do not use them. She may already be going to have you answer questions about this today.

Hope today isn’t a long one for you!”

[9] Following a brief recess, the Crown and defence made submissions on the best way to proceed. It was agreed that Ms. Anderson would complete her evidence in chief, and the defence would cross-examine her on all issues including the communication.

[10] During her evidence in chief, Ms. Anderson testified that she needed to correct a possible mistake in her evidence. She explained that while she testified the day before that the tube for the blood sample contained lithium heparin (an anticoagulant), she was not sure if Orillia Soldier’s Memorial Hospital (OSMH) used lithium or sodium heparin at the time Noah’s sample was taken (August 16, 2016). She explained that it would not make a difference in the testing results whether the tubes contained sodium or lithium heparin. She just wanted to be more accurate on the point.

[11] After further questioning by the Crown, Ms. Anderson explained that she had texted Mr. Spiker about this after her testimony. He advised her by text that the OSMH used sodium heparin. This made her feel she had to correct her evidence.

[12] After completing her evidence in chief, Ms. Anderson was cross-examined. The defence cross-examined Ms. Anderson extensively on the fact that she had been texting with Mr. Spiker. The defence suggested that Mr. Spiker was trying to give her answers by sending her the text. The defence also suggested that it was improper for Ms. Anderson to text Mr. Spiker to ask questions about the evidence.

[13] Ms. Anderson testified that she did not realize there was anything wrong with what she did. She was merely trying to clarify whether or not the hospital used lithium heparin or sodium heparin in their tubes. She was not trying to violate a court order. She also testified that she did not take anything from Mr. Spiker’s text, and simply gave it to the Crown as Mr. Spiker requested.

[14] Mr. Spiker was not called by either party to address his text or any other possible communications between himself and Ms. Anderson.

[15] When asked for the texts, Ms. Anderson testified that she did not retain them. They had been deleted. The balance of the texts between Ms. Anderson and Mr. Spiker were obtained by the Crown from Mr. Spiker at the request of defence. Nothing beyond what was mentioned by Ms. Anderson in her testimony was contained in the texts between Ms. Anderson and Mr. Spiker.

Analysis

The Doctrine of Abuse of Process and Section 7 of the Charter

[16] Canadian courts have an inherent and residual discretion at common law to control their own process and prevent its abuse. Generally speaking, in the context of the criminal trial, this inherent jurisdiction will include the court’s obligation to ensure the accused has a fair trial. [1]

[17] Section 7 of the Charter requires that a criminal trial which engages the liberty and security interests of the accused be conducted fairly. The accused has a right to a fair trial which includes the right to an impartial trier, the right to know the case to meet, and the right to make full answer and defence.

[18] Whether pursuant to its inherent jurisdiction to control its own process, or pursuant to the Charter, namely section 24(1) or 24(2), the court will grant remedies to ensure the accused is afforded a fair trial. [2] As explained in R. v. Harrer, [1995] 3 S.C.R. 562, at para. 46, a court can also control its own process by excluding evidence that would render the trial unfair and/or would amount to an abuse of its process. [1]

[19] In extreme cases, a court can even end a proceeding completely with a judicial stay where no other remedy will suffice. The availability of a stay of proceedings to remedy an abuse of process was confirmed by the Supreme Court in R. v. Jewitt, [1985] 2 S.C.R. 128. As the Court explained in Jewitt, at pp. 136-37, a stay should be granted 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”, or where the proceedings are “oppressive or vexatious”.

[20] When a stay of proceedings is entered in a criminal case for abuse of process, “[t]he prosecution is set aside, not on the merits . . . , but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court”: see R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667. The remedy is reserved and can only be exercised in the clearest of cases: see also Amato v. The Queen, [1982] 2 S.C.R. 418.

Application to the Facts of the Case

[21] In this case, there was an order excluding witnesses. It is trite to state that the purpose of an order excluding witnesses is designed to protect the integrity of the proceedings. The basis for the rule is to ensure that the evidence of a witness is not unduly influenced and/or tailored to conform to the evidence of others. The rule also permits the trier to properly weigh the witness’ evidence as against the evidence of other witnesses. The importance of the rule should not be understated.

[22] The Applicant takes the position that the actions of Ron Spiker and Rachel Anderson demonstrate a wanton and callous disregard for the court process. Their actions undermine the community’s sense of fair play and decency, and the integrity of the system would be undermined if the proceedings were allowed to continue in relation to this charge. According to the defence, the texts themselves suggest that Ms. Anderson and Mr. Spiker communicated about matters beyond what was contained in the texts. The court cannot be satisfied about the reliability of either of the witness’ evidence. Even if a stay is not warranted, their evidence should be attributed no weight.

[23] I disagree. First of all, even if the witnesses here (Mr. Spiker and Ms. Anderson) colluded, and made efforts to subvert the process by fabricating evidence, a stay would not be appropriate. Ron Spiker and Rachel Anderson are simply witnesses in the proceeding. They are not police witnesses. Nor is there any allegation that the Crown was involved in the alleged impropriety in any way. Had the Crown or the police been involved in the alleged abuse, the availability of a stay would be more apparent.

[24] In this case, however, the witnesses themselves are not involved in advancing the proceeding against the accused. They have no direct stake in the outcome. In my view, it would be wrong to sanction the state by staying the charge completely when the state/litigant was not involved in any wrongdoing.

[25] Obviously, a court is required to determine the weight that should be attributed to a witness’ evidence. This is particularly so where the evidence at issue is contentious. If a witness’ evidence goes to a core issue at trial, and the court is not able to properly assess the weight to be given to a witness’ evidence because of possible collusion/impropriety, the court will give no weight to the witnesses’ evidence.

[26] Indeed, it is the court’s ability to limit the weight attributed to the evidence at issue that ensures the accused is afforded a fair trial. The effect of attributing no weight to the witness’ evidence may result in an acquittal. However, this is a consequence of protecting the accused’s right to a fair trial. It is not a function of sanctioning the state or the particular witness alleged to be involved in wrongdoing.

[27] In this case, I do not agree that the witnesses colluded to subvert the trial process. Again, it would have been better if the witnesses did not communicate in the way that they did. However, I do not agree that their communication was subversive, contemptuous, or has any material bearing on their credibility.

[28] Mr. Spiker’s evidence was very limited in scope, and the communication raises no concerns for me regarding the reliability of his testimony.

[29] I also found Ms. Anderson to be a credible witness. Again, nothing about the communication between her and Mr. Spiker would give me concerns regarding the reliability of her evidence.

[30] Rachel Anderson’s primary evidence related to taking the accused’s blood, and submitting it for testing. The text and any of their communications would have no significant bearing on this evidence. Moreover, by the time Ms. Anderson received Mr. Spiker’s text message, she had already completed most of her testimony on the seminal issues.

[31] For the reasons outlined above, I dismiss the application.

Justice C.F. de Sa

Released: March 14, 2019

Footnotes

[1] The court’s inherent jurisdiction is obviously broader that the jurisdiction afforded under section 7 of the Charter in that it would also permit for the regulation of the conduct of the accused during the proceeding. The court’s inherent jurisdiction also includes the general authority derived from the need to control proceedings. The Charter is not always engaged in the context of the court’s authority to regulate proceedings.

[2] The court can grant a range of remedies including ordering the Crown to provide outstanding disclosure, excluding evidence that may be unduly prejudicial, granting a severance, permitting witnesses to be recalled, granting a mistrial or even granting a stay where appropriate.