Court File and Parties

Court File No.: CR-20-70000092-00MO Date: 20210303 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Bruce Grisdale

Counsel: A. Del Rizzo, for the Crown J. Pyzer, for Mr. Grisdale

Heard: 8 February 2021

Restriction on Publication: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

S.A.Q. Akhtar J.

Factual Background and Overview

Background Facts

[1] The respondent was charged with two counts of indecent assault on a female contrary to s. 149 of the Criminal Code, arising out of historical incidents that were alleged to have occurred in 1976.

[2] By 3 June 2020, the Ontario Court of Justice had developed a protocol for scheduling court hearings during the COVID-19 pandemic. A series of judicial pre-trials were conducted to determine how the respondent’s preliminary inquiry would proceed.

[3] At the judicial pre-trial held on 25 June 2020, the respondent’s counsel expressed concerns about an in-person hearing due to his client’s health concerns. At the same time, the Crown indicated difficulties with the complainant’s ability to access the required technology if a remote hearing was held.

[4] Both parties made steadfast and commendable efforts to accommodate all parties and keep the hearing on track. It was agreed that the complainant would testify in court whilst the respondent, counsel, and the judge would attend from remote locations.

[5] Ten days prior to the hearing, the complainant raised concerns about this procedure. The Crown and police sought to allay her fears. However, on the morning of the hearing, the complainant reiterated her apprehensions to the Crown.

[6] Crown counsel informed the court of these concerns, specifically her fears that since the respondent was unsupervised, he, or someone else might record her testimony. The complainant told the Crown that she would not be willing to testify if the current remote arrangements were retained.

[7] The Crown notified defence counsel of these developments the day before the preliminary inquiry and both counsel agreed to deal with the matter at the outset of the hearing.

[8] The respondent informed the court that he was alone, in a private space, and unable to record proceedings. In turn, the judge made clear that any recordings would be a violation of the publication ban imposed and provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[9] The Crown called the officer in charge in this case, Detective Constable Chapman, to explain the complainant’s viewpoint. The officer repeated the complainant’s disquiet that she might be recorded whilst testifying on Zoom. The officer added that the complainant “feels she’s being re-victimized by being put in this position”. Detective Constable Chapman informed the court that despite the respondent’s assurances, the complainant was distrustful and felt his promises were worthless.

[10] The judge asked the Crown to speak to the complainant, making clear his disinclination to change the format of proceedings by stating:

I'm not going to make an order that Mr. Grisdale appear in any manner other than he currently appearing. I don't think that there's a need to safeguard the process, that every accused or any accused has to be anywhere other than their home, we have – knowing, all – obviously he's not allowed to do anything that ought not to be doing and I'm sure that he understands that, and I would expect him to behave in the same manner that he would behave in the courtroom, and I certainly – I mean, if were in a courtroom I wouldn't put him custody or in a box to satisfy some sort of concerns that he might do something untoward, and I'm not going to entertain some sort of requirement that he do so. I'm also not going to order that he be excluded from participating in his preliminary inquiry.

The Preliminary Inquiry Judge’s Ruling

[11] After discussing the matter with the complainant, Crown counsel informed the court that he was not asking for the complainant to give evidence by audio nor making a request that she be detained for refusing to testify pursuant to s. 545(1) of the Criminal Code, R.S.C. 1985, c. C-46. Instead, he requested an adjournment so that the hearing could be held at a time when in-person proceedings would resume. Defence counsel opposed the application.

[12] The judge proceeded to rule on the application using the test set out in Darville v. The Queen (1956), 116 C.C.C. 113 (S.C.C.). He found that the first two conditions favoured granting the adjournment: the complainant was obviously a material witness; and the Crown had not been guilty of laches in proceeding with the preliminary inquiry.

[13] The judge found that the Crown’s choice not to request the complainant’s detention pursuant to s. 545 of the Code was a factor to be considered in deciding whether to grant an adjournment.

[14] Ultimately, the judge’s decision was based on the third Darville factor: was there a reasonable expectation that the attendance of the witness could be procured at the next hearing date? The trial judge held that the Crown was seeking an “indefinite adjournment until Mr. Grisdale can safely appear personally in the courthouse”. The judge estimated this was “at the very earliest eight months to a year from now and could well be many years from now depending on the availability of the [COVID-19] vaccine”.

[15] Accordingly, the judge declined to adjourn the matter. Since the Crown was unable to call any evidence, the judge discharged the accused of the two offences on the information.

[16] The Crown applies for certiorari to quash the judge’s order of discharge, and requests that this court issue an order of mandamus directing the judge to proceed with the preliminary inquiry when a new date is set.

Legal Principles

[17] The prerogative remedy of certiorari in preliminary inquiry cases is usually sought when a preliminary inquiry judge has made a jurisdictional error in their assessment of evidentiary issues: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635. For example, certiorari would be granted when a judge committed an accused for trial where there was no evidence of an essential element of the offence or, alternatively, discharged an accused where they failed to consider all of the evidence.

[18] That is not to say, however, that prerogative remedies cannot be used in other situations with respect to preliminary inquiries. In R. v. Boyce (2009), 248 C.C.C. (3d) 403 (Ont. S.C.), the reviewing court granted prohibition on the basis that the preliminary inquiry judge allowed the accused’s application to video record a Crown witness’ evidence, something that was contrary to s. 136(1) of the Courts of Justice Act.

[19] Further, failure to grant adjournment requests have also been held to constitute jurisdictional error in the preliminary inquiry context.

[20] In R. v. Lena, 2001 BCCA 549, 158 C.C.C. (3d) 415, the court found that the preliminary inquiry judge wrongly denied the accused an adjournment because the Criminal Code mandated that an accused had an opportunity to call his own witnesses. I shall return to Lena shortly.

[21] Finally, in R. v. Caprara, [2004] O.T.C. 367 (S.C.), the court granted certiorari on the basis that a preliminary inquiry judge had committed jurisdictional error by refusing an accused an adjournment to obtain missing disclosure.

Did the Judge Commit Jurisdictional Error?

[22] For the following reasons, I agree with the Crown that the judge committed a series of jurisdictional errors in discharging the offences with which the respondent had been charged.

The Judge’s Powers to Safeguard the Procedure

[23] First, the judge failed to recognise that he had the jurisdiction to determine the method in which the respondent could participate in the proceedings.

[24] In his discourse with the Crown, the trial judge remarked:

THE COURT: Can I just ask, Mr. Hogan, I am of course preliminary inquiry judge [indiscernible] statutory court do you have any authority for me to make an order compelling Mr. Grisdale to attend anywhere other than where he currently is now?

MR. HOGAN: I, I don't think you can. I mean, as long as everybody's consenting to the manner of his testimony, I'm not sure how the, the – that gets dealt with. And, and if – that's to some reason why I flagged as it is going to be an issue going forward with concerns both for, not necessarily with Mr. Grisdale, but any witness who testifies by way of this proceeding. I mean, the Court can make the orders, the Court – with persons who have some degree direction over the witnesses can tell the Court that they've done it, but without having persons in – I know the complainant used the phrase, through Detective Chapman a number of times, a secure location, but a location where there is some ability for some person to observe at least the, the – these concerns are going to go forward. That's not, nor do I think seem to be a –necessarily a means of, of addressing.

THE COURT: I mean, even if he was in the courtroom and using a computer, I don't think that anyone would have any right to look at whatever it was that he was looking at or typing or communicating with other persons or anything like that, do you?

[25] This exchange appears to indicate that the judge felt that he had no jurisdiction to control the respondent’s use of a computer or electronic device in the courtroom. This was an error: as can be seen in Boyce, the judge did have that ability, and could direct court staff to ensure that any electronic device was being used in accordance with his directions and the Courts of Justice Act. For example, the court staff could be directed to ensure that anyone in the courtroom, including the accused, was not recording the proceedings without permission or contacting others outside the courtroom.

[26] Similarly, in remote hearings, a judge has the jurisdiction to ensure that witnesses testify without anyone else being present, to prevent electronic communications with others when testifying, or preclude impermissible recording of the proceedings. Indeed, one might assume that the judge had a duty to ensure the prevention of actions which might render the hearing unjust or unfair.

[27] Although I accept that the judge was not helped by the Crown’s submission on the issue, the judge’s erroneous assumption that he did not have this power led to jurisdictional error.

[28] Later on in his reasons, the judge stated:

I must address the conditions set out by the Supreme Court of Canada in the decision of R. v. Darville. The first condition, whether the witness is material to the party's case is quite clearly satisfied. It appears that JK is the only witness capable of providing substantial evidence with respect to the allegations. The second condition; has the party applying for the adjournment been guilty of any neglect in ensuring that the witness attend for trial (sometimes referred to as latches). It does appear that Mr. Hogan has made reasonable efforts to attempt to convince the complainant to testify as she is required to do, and although I have no reason to doubt that her objections are sincerely held, they are in my view unreasonable in the sense that a) I have no jurisdiction to order compliance with them; b)they do not in law amount to a legal basis to refuse to testify pursuant to a lawfully issued subpoena, and c) even if I had jurisdiction to make such an order given Mr. Grisdale's vulnerabilities, such an order could well expose him to contracting to the virus that could ultimately lead to his death. [Emphasis added]

[29] The judge added:

The complainant JK attended the courthouse today and arrangements have been made for her to testify in a separate courtroom with a laptop computer enabling her to testify via Zoom. JK advised through Detective Chapman and through the Crown Mr. Hogan that she was unwilling to testify unless certain conditions were met with respect to Mr. Grisdale's attendance. The Crown has not brought any application and fairly concedes that I do not have any jurisdiction, statutory or otherwise, to compel compliance with the conditions sought by the complainant.

[30] Again, this was an error. The judge did have jurisdiction to order compliance with the conditions sought by the complainant.

[31] The failure to recognise this jurisdiction led the judge to focus on the complainant rather than consider how the complainant and the respondent could both be accommodated.

[32] For example, pursuant to ss. 537(1) (j) and (j.1) of the Criminal Code, the judge could have enquired with defence counsel about obtaining consent from the respondent to being absent from the proceedings when the complainant testified. Alternatively, the judge could have directed the respondent to attend counsel’s office or have someone from counsel’s office - with the appropriate protective mask and clothing - to attend the respondent’s home. Finally, the judge could have ordered the respondent to attend the courthouse and directed staff or the Crown to make a cleaned COVID-safe room available.

[33] The words of defence counsel made clear that the issue was not the respondent coming to court or going to his office, but rather the notice given to make these arrangements. When making submissions with respect to the developments, counsel submitted:

It was no time to arrange for Mr. Grisdale to either consider coming court, although he has and has safety concerns, but somehow maybe to get us both in the same location, as I understand that would somehow satisfy the complainant's concern. So we are not going to be requesting or consenting to an adjournment. If there is no evidence, we're going to be asking that the charges be dismissed in these circumstances.

[34] Regrettably, the judge focused not on these alternative arrangements but on the reasonableness of the complainant’s request that the matter be conducted as it would have been prior to the pandemic.

Section 540 of the Criminal Code

[35] In Forsythe v. The Queen, [1980] 2 S.C.R. 268, the Court found certiorari to be an available remedy if the preliminary inquiry judge failed to apply a mandatory provision contained in the Criminal Code. The Court also found that a breach of natural justice would amount to jurisdictional error. This principle was echoed in R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 21.

[36] Following Forsythe, the court in Lena, found that the preliminary inquiry judge lost jurisdiction by dismissing the accused’s adjournment request to call a witness. The court found that s. 541 of the Criminal Code, which states that after the Crown has finished its case the preliminary inquiry judge shall “hear the witnesses called by the accused” mandated an accused’s right to call witnesses. Accordingly, the judge’s refusal of the defence request led to jurisdictional error.

[37] Section 540 of the Code is the equivalent Crown section which states that:

540 (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall (a) take the evidence under oath of the witnesses called on the part of the prosecution, subject to subsection 537(1.01), and allow the accused or counsel for the accused to cross-examine them;

[38] This is a mandatory section. In this case, like Lena, the Crown was entitled to call the complainant as a witness to establish sufficient evidence to justify a committal. The witness was available and had been subpoenaed. The Crown’s only caveat was that the hearing take place in the usual pre-pandemic format of an in-person hearing so that the complainant could be comfortable knowing that her security and privacy were protected. This was not a case where the witness could not be found or had no relevant evidence to give.

[39] The judge’s refusal of the Crown’s adjournment request was a jurisdictional error because of non-compliance with s. 540(1) of the Code and a breach of natural justice.

Section 545 of the Criminal Code

[40] Moreover, the judge committed jurisdictional error by relying on irrelevant factors when deciding the adjournment issue.

[41] At the outset of his reasons for declining to adjourn the hearing the judge referred to the Crown’s earlier comments on the use of s. 545(1) of the Criminal Code by stating:

In effect, by bringing this application, the Crown is asking that the witness's unreasonable demands be acceded to and has chosen not to request that I exercise my powers under Section 545 to commit her to custody. While that may well be the reasonable course of action in the circumstances, it is also an available course of action that the Crown has chosen not to pursue and the refusal of the adjournment application may well be one of the consequences flowing from that decision.

[42] Section 545(1) of the Code provides:

545 (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence, (a) refuses to be sworn, (b) having been sworn, refuses to answer the questions that are put to him, (c) fails to produce any writings that he is required to produce, or (d) refuses to sign his deposition, without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may, by warrant in Form 20, commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.

[43] There were two errors committed by the judge in his use of the Crown’s failure to “choose” not to bring a s. 545(1) application.

[44] First, there is nothing in the section that requires the Crown to trigger its use. The judge could have proceeded with its use, irrespective of any Crown application, so long as the other conditions had been met.

[45] Secondly, the conditions of the section had not, in any event, been satisfied. Section 545(1) requires the witness to refuse to be sworn, or having been sworn refuse to testify. Neither of these things had happened.

[46] The complainant had simply expressed her unwillingness to testify in a hearing where the respondent was situated outside the courtroom. The Crown explained the situation to the trial judge in the following way:

In the circumstances, the complainant certainly feels like she attended at a courthouse today that is technically closed to in-person hearings, prepared to conduct an in-person hearing, and that, at least in her perspective, there's a degree of fairness which ought to be considered. That she is certainly not unwilling to testify. She is willing to testify under circumstances in which she feels her, her security and her privacy can be protected, and she believes that this is not such a circumstance.

[47] In other words, the witness had not reached the stage at which s. 545(1) had become operative and it was a jurisdictional error for the judge to have used it as a factor in the Darville assessment.

The Judge’s Darville Analysis

[48] The judge also committed jurisdictional error with respect to the third Darville ground. The judge correctly recognised that there had to be a reasonable expectation that the attendance of the witness could be procured in the event of adjournment.

[49] However, he continued:

The Crown essentially seeks in this case an indefinite adjournment until Mr. Grisdale can safely appear personally in the courthouse. That will certainly be at the very earliest eight months to a year from now and could well be many years from now depending on the availability of the vaccine. I am not prepared to grant the Crown's request for an adjournment of an indefinite duration and accordingly the application is dismissed.

[50] For the following reasons, the judge erred.

[51] First, as noted, under Darville, the third limb required the Crown to establish that the complainant would attend the date on which the preliminary inquiry would be held. The Crown informed the court that the complainant was willing to testify at a new in-person hearing date.

[52] However, the judge injected an additional set of factors into the test by adding the requirement that any new date be definite and not far into the future. Those conditions do not form part of Darville and in making them the deciding factor in his analysis, the judge committed an error of jurisdiction.

[53] Secondly, it is unclear how the judge reached the conclusion that the adjournment would be indefinite or “could well be many years” depending on the emergence of a vaccine. The preliminary inquiry took place at an early stage in the pandemic and no one at the time knew when matters would return to be heard in the courtroom.

[54] At the time of the hearing, the judge’s view of how the pandemic would evolve was purely speculative and an inappropriate factor to consider.

[55] I understand that the Ontario Court of Justice quickly retrofitted its courtrooms with plexiglass and made them COVID-19 friendly in and around the time of this preliminary inquiry. Those protocols have been continuously refined to cope with any COVID-19 developments. It was possible that accommodations could have been made for the respondent’s attendance at the courthouse. Here, the judge took no steps to try and find ways of ensuring the respondent’s safety in the courtroom so that all parties could be accommodated.

[56] Moreover, as previously noted, the hearing could have been adjourned to a date when the respondent could attend counsel’s office. The respondent’s counsel made clear that, he had been given such short notice of the complainant’s concerns that it was not feasible on the date of the hearing “to get us both in the same location”.

[57] If, as the judge feared, the hearing date was set too far into the future, it was open to the Crown to direct an indictment to safeguard the respondent’s s. 11(b) Charter rights. This, however, was not a matter to consider when refusing to adjourn the case.

[58] The judge’s error resulted in a flawed Darville assessment and jurisdictional error.

[59] For these reasons, the application for certiorari is granted and the trial judge’s order of discharge of the offences is quashed. I also grant an order of mandamus directing the preliminary inquiry judge to proceed with the preliminary inquiry.

[60] Mr. Grisdale is ordered to appear on at 10:00 a.m., 17 March 2021 at the Ontario Court of Justice, College Park courthouse, 444 Yonge Street in Toronto, either by video or in person as is directed by the Ontario Court of Justice COVID-19 protocol.

S.A.Q. Akhtar J. Released: 3 March 2021