COURT FILE NO.: CV-23-00000290-0000

DATE: 2023/03/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE RIGHT HONOURABLE JUSTIN TRUDEAU, Applicant

AND:

HIS MAJESTY THE KING and SHANE MARSHALL, Respondents

BEFORE: Justice I.F. Leach

COUNSEL: Fredrick R. Schumann and Kevin Egan, for the Applicant Jeremy K. Carnegie, for the Respondent His Majesty the King Luke Reidy and Phillip Millar, for the Respondent Shane Marshall

HEARD: March 6, 2023

ENDORSEMENT

[1] This matter came before me for an urgent special appointment hearing this past Monday; i.e., with the applicant seeking to quash a subpoena, (issued by a Justice of the Peace on December 19, 2022), requiring the applicant to appear the next day in the Ontario Court of Justice to give evidence in a criminal trial between the respondents.

[2] At the conclusion of that hearing, I made an order granting the extraordinary remedy of certiorari quashing the relevant subpoena, for reasons to follow.

[3] These are those reasons.

Background

[4] I will have more to say, during the course of these reasons, about various underlying developments leading to the hearing before me. However, by way of initial background:

a. The respondent Mr Marshall has been charged with committing the offence of assault with a weapon, contrary to s.267 (a) of the Criminal Code. In particular, the single count set forth in the relevant Information, sworn on September 11, 2021, alleges that “Shane Zechariah MARSHALL, on or about the 8^th day of September in the year 2021 at the City of London in the Southwest Region did, in committing an assault on Justin TRUDEAU, use a weapon, namely a blunt object, contrary to Section 267, clause (a) of the Criminal Code of Canada.”

b. The charge stems from events that are said to have occurred here in the city of London on September 8, 2021, during the course of a federal election. The respondent Mr Marshall is alleged to have thrown pebbles or small pieces of gravel at the applicant, when the applicant was boarding a campaign bus after a campaign event. Counsel for Mr Marshall has acknowledged that the relevant throwing of pebbles or gravel was witnessed by others, and that the applicant, when the throwing occurred, was approaching the door to his campaign bus and facing the opposite direction from where the pebbles and gravel were thrown.

c. Mr Marshall was arrested three days later, on September 11, 2021, and provided an extended statement to the police during the course of an interview that was made the subject of an audio-video recording.[^1] As indicated in the “Trial Readiness Certificate” filed in the Ontario Court of Justice, the voluntariness of that statement has been formally admitted by Mr Marshall, thereby allowing it to be introduced as evidence in the criminal proceeding against him. Amongst other things, the transcript of the statement includes the following indications:

i. Mr Marshall initially denied responsibility for throwing of the gravel.[^2]

ii. The officer conducting the interview then presented Mr Marshall with evidence from a number of photographs and videos which had recorded the incident; evidence which, (as Mr Marshall expressly acknowledged), included images of the person throwing the gravel, and images of the applicant getting “gravel thrown on him”.[^3]

iii. In response to being presented with those images, Mr Marshall expressly and repeatedly conceded that he was the person “throwing the rocks”, apologized for the “silly thing [he] did” in that regard, and claimed he “wasn’t even trying to hurt the guy”.[^4]

d. In statements to the media published on August 15, 2022, Mr Marshall’s defence counsel Mr Millar said that he had “every intention of subpoenaing Justin Trudeau, challenging him on the inconsistencies of his statements and alleging that he was provoking the protesters”. Mr Millar is reported to have then said “We have a very strong case to justify that subpoena and believe that it will be enforced”, before adding that he would “love to cross-examine the Prime Minister”.[^5]

e. The proceedings before me confirmed that the allegedly inconsistent statements of the applicant to which Mr Millar was referring in the above comments, (i.e., Mr Millar’s comments about the applicant making statements exhibiting alleged inconsistencies), focused on comments of the Prime Minister captured by two particular video recordings; recordings which I allowed counsel for Mr Marshall to play during the hearing before me after a voir dire to consider their admissibility.[^6] For present purposes, I think those comments may be summarized as follows:

i. In the first video recording, when being asked about the thrown pieces of gravel, the applicant initially says “a couple might have pelted (?) off my shoulder”. When someone then asks “It might of, or it did?”, the applicant responds with a question in turn: “Does that matter?” When others on the bus then respond with overlapping comments such as “I think it matters, yeah”, “It absolutely does, cause if we got hit by gravel…”, and “Cause I was right next to you, taking your coat (?) and I got hit”, the applicant responds, (while others continue to intermittently interject other interrupting comments), by gesticulating in the area to the right and above his head and saying: “Well, some of us got, yeah… There was (sic) little bits of gravel, and some of us got…but it’s no big deal.” The applicant notes that someone threw pumpkin seeds at him a few years earlier, to which someone else responds “gravel’s different than pumpkin seeds, it’s wrong”. The applicant then shrugs and says “Well…”, before he is then interrupted by other comments and says “Okay, thanks guys” before turning and walking towards the front of the bus.

ii. In the second recording, the applicant says, towards the beginning of the recording, “Yes, I felt some of that gravel”. However, the topic of conversation then segues to comments by the applicant indicating that such conduct was unacceptable in Canada, but that the applicant also was more focused on other unacceptable conduct being experienced by others, such as healthcare workers struggling with the unacceptable conduct of others directed towards them during the pandemic. The applicant’s comments do not return to the specific gravel-throwing incident, (even when the applicant is specifically asked for his account of what happened, whether he felt the gravel thrown at him by protesters, and considered that an act of assault), apart from emphasizing that others were present at the time of the incident, (including volunteers, supporters, police officers and journalists), and that no one should have to do their jobs under threats of violence or acts that put them in danger.

f. On September 2, 2022, counsel for Mr Marshall made a first attempt to obtain a subpoena, issued pursuant to ss.698 and 699 of the Criminal Code, compelling the applicant to attend Mr Marshall’s criminal trial on March 7, 2023, in order “to give evidence concerning the … charge” against Mr Marshall. In particular, defence counsel’s law firm prepared a draft “Subpoena to a Witness” document to that effect, (otherwise known as a “Form 16” subpoena), and a law clerk employed by defence counsel submitted it by email to the London office of the Ontario Court of Justice, with the relevant cover email saying: “We are seeking that Mr Trudeau attend the Trial scheduled on this matter as a witness, as he is the complainant in this matter and he would therefore have knowledge of the facts in this matter. Please return the signed copy of this subpoena by email and confirm once the original is available for pick up.” However, the Justice of the Peace who reviewed the request, (Her Worship Tammy Waugh), returned that material the same day, unsigned. She did so under cover of a memo indicating that the draft subpoena was “Not Signed for the following reasons: At this time, the test for issuing a subpoena to the Prime Minister has not been met pursuant to section 699 of the Criminal Code of Canada”.

g. On December 19, 2022, counsel for Mr Marshall made a second attempt to have their desired subpoena issued in relation to the applicant. On that occasion, the draft Form 16 subpoena submitted to the London office of the Ontario Court of Justice for consideration was accompanied by a typed single-spaced document, slightly less than 1½ pages in length, entitled “R. v. Marshall – Evidence Supporting Subpoena Application (Criminal Code ss.698, 699, Form 16)”. Given the length of that document, I will not replicate it in its entirety here. For present purposes:

i. The document begins with an indication that “Pursuant to sections 698 and 699 of the Criminal Code (CC) and Caselaw interpreting the legal test contained in these provisions, we provide the following in support of this Application”.

ii. The document then provides “background” information, including a short summary of the incident giving rise to the charge against Mr Marshall. Among other things, the document says the following: “As the PM approached the opened door to his bus, pebbles or small gravel pieces were witnessed flying in his vicinity, while he was turned in the opposite direction”. [Emphasis added.]

iii. The document then refers to statements made by the applicant during the first recording described above; i.e., the recording made aboard the applicant’s campaign bus, immediately after the underlying incident happened. The document suggests that the applicant “seemed unsure if any pebbles had hit him”. That was then contrasted with statements said to have been made by the applicant “in subsequent recordings”, wherein the “the PM states with certainty that he had in fact been struck by gravel”.

iv. After noting the charge against Mr Marshall, and that the applicant was “the named complainant”, the document indicates the following: “The general test for issuing a Form 16 subpoena is whether the person sought to be subpoenaed is ‘likely to give material evidence’ (CC s.698(1)) Given the PM’s position of responsibility, the additional criterion of “necessity” is to be considered”. [Emphasis added.] Several case citations then were offered in support of those propositions, before the document goes on to address suggested “Likelihood”, “Materiality” and “Absolute Necessity” respectively as follows:

1. “It is likely that the PM can provide evidence because the PM is the named complainant and the object of the alleged assault with a weapon. The PM was present at the location, time, and day of the alleged offence.”

2. “The PM’s testimony is material because it connects the facts of the incident to the elements of the charge. His evidence is material in assisting the court in determining whether the elements of the actus reus of assault are proved (CC s.265(1)(a)-(c)), including the application of force and the subjective element of a perceived ‘threat’ from the PM’s perspective (CC s.265(1)(b)).”

3. “Subpoenaing the PM is an absolute necessity because no other person besides the PM can provide this evidence.” [Original emphasis.] He is the only person who can say whether force was applied to his person without his consent, or if he anticipated a stone being thrown, or whether the accused had the present ability to affect an application of force without consent (CC s.265(1)(c)). [Emphasis added.] Additionally, since the PM’s evidence has changed, Mr Marshall’s right to full answer and defence necessitates the ability to cross-examined (sic) the PM on his prior inconsistent statement.”

v. The document indicates that defence counsel will be relying on two videos, the first showing “the PM uncertain as to what happened or whether he was struck by pebbles”, and the second wherein “the PM’s peaks (sic) with certainty that he was struck with stones”.

vi. The document concludes with the following indication: “Moreover, we furnish an affidavit by an articling student who has knowledge of the circumstances and is willing to be orally examined under oath.” [Emphasis added.] It is undisputed that, in fact, no such affidavit was submitted with the application.

h. Defence counsel’s second application for the desired subpoena in relation to the applicant was considered by Justice of the Peace Sonia Aleong, who issued the requested subpoena the same day; i.e., on December 19, 2022. In doing so, Her Worship provided short handwritten reasons which read as follows: “Upon reading the written application of the Defendant for a subpoena to issue for The Right Honourable Justin Trudeau, Prime Minister of Canada, in the matter of R. v. Shane Marshall, IT IS ORDERED that, pursuant to s.698 of the Criminal Code of Canada, the subpoena will issue.”

i. The applicant commenced his application herein on February 9, 2023, by way of a “Notice of Application” in the form contemplated by Rule 38.04 of Ontario’s Rules of Civil Procedure and Form 14E referred to therein. The prayer for relief in that notice of application sought the following relief: “An Order quashing the subpoena to witness issued to the Applicant, the Right Honourable Justin Trudeau, Prime Minister of Canada, by Justice of the Peace Aleong dated December 19, 2022”, and “such further and other relief as to (sic) this Honourable Court may deem just”.

j. On February 13, 2023, that notice of application, and the applicant’s initial application record, were formally served on counsel for the respondents. Two days later, (i.e., on February 15, 2023), counsel for the respondents were served with a supplementary application record and factum.

k. On March 1, 2023, defence counsel served Crown counsel and counsel for the applicant with defence counsel’s factum and a collection of documents entitled “Record of Proceedings” that contained: copies of the relevant issued subpoena; the document described above entitled “R. v. Marshall – Evidence Supporting Subpoena Application (Criminal Code ss 698, 699, Form 16)”, and two additional pages, under separate tabs, with each indicating simply “VIDEO RECORDING TO BE DEMONSTRATED”.

l. Finally, shortly before the hearing before me began on March 6, 2023, Crown counsel circulated, under a cover page entitled “APPLICATION TO QUASH SUBPOEA – RESPONSE OF THE CROWN”, copies of the transcript of Mr Marshall’s police interview, (described above), and one particular case relied upon by Crown counsel; a case already cited and relied upon by counsel for the applicant.

[5] With all of the above background in mind, I turned next to consideration of a preliminary objection raised by defence counsel, suggesting that the application before me should be dismissed because it had been brought in the wrong forum.

“Improper Forum” Objection

[6] In that regard, defence counsel argued that the applicant had brought his application “before the Superior Court of Justice, Civil Division, under the Rules of Civil Procedure”, whereas the “correct forum” for such an application was “the Superior Court of Justice, Criminal Division, under the Criminal Proceedings Rules for the Superior Court of Justice”, (i.e., as an application seeking the extraordinary remedy of certiorari available pursuant to section 774 of the Criminal Code), as Mr Marshall obviously had been charged criminally.

[7] As indicated during the course of the hearing before me, I disagreed with part of that submission, insofar as there are no separate “Superior Court of Justice Civil Division” and “Superior Court of Justice Criminal Division”; at least not here in the Southwest Region. There is simply one Superior Court of Justice that hears both civil and criminal matters, as well as family law matters.

[8] However, (as I also indicated to counsel during the course of the hearing), I independently was of the view that the manner of proceeding chosen by the applicant was procedurally deficient. In particular:

a. As the Supreme Court of Canada indicated repeatedly in R. v. Jobin, [1995 144 (SCC)], [1995] 2 S.C.R. 78, at paragraphs 28 and 32, for third parties to a criminal proceeding, (i.e., parties other than the Crown and those whom the Crown is prosecuting), a provincial court order -- which would include an order issuing a subpoena pursuant to s.698(2)(a) of the Criminal Code, as in this case – “should be challenged by an application to a superior court for the extraordinary remedy of certiorari”.

b. In Ontario, such applications are governed by Rule 43 of the Criminal Proceedings Rules of the Superior Court of Justice, with Rule 43.01 expressly indicating: “This rule applies to applications in criminal matters by way of certiorari, … including applications to quash a subpoena”. In that regard:

i. Rule 43.02 provides that applications under rule 43.01 “shall be made to a judge of the court in the region, county or district in which the proceedings to which the application relates have been, are being or are to be taken”.

ii. Rule 43.03(1) provides that “A notice of application under this rule shall be in Form 1 and comply with rule 6.03 and shall also state the subpoena .. to which the application relates.”

iii. Rule 6.03 provides that every notice of application in Form 1 shall state:

a. the place and date of hearing in accordance with rule 6.02 and any other applicable rule;

b. the precise relief sought;

c. the grounds to be argued, including a reference to any statutory provision or rule to be relied upon;

d. the documentary, affidavit and other evidence to be used at the hearing of the application; and

e. whether any order is required abridging or extending the time for service or filing of the notice of application or supporting materials required under these rules.

iv. Rule 6.02 largely mirrors the content of Rule 43.02, insofar as it provides that “Applications shall be made to a judge of the court in the county, district or region where the criminal proceedings to which the application relates are being or are to be heard.”

c. To the extent the application giving rise to the hearing before me followed the procedural requirements of the Rules of Civil Procedure, rather than the above provisions and formal requirements mandated by the Criminal Proceedings Rules of the Superior Court of Justice, it was procedurally deficient and in that sense improper.

[9] But not fatally so, in my view.

[10] Without limiting the generality of the foregoing:

a. While the form employed by the applicant might deviate from that prescribed by the Criminal Proceedings Rules of our court, even a cursory review of the content of the applicant’s “civil” notice of application reveals that it contains the functional equivalent of most, if not all, of the applicable substantive content required by Rule 6.03 in relation to a “criminal” notice of application, as outlined above. In particular, the application was commenced in the correct region or county where the underlying criminal proceeding is taking place, (i.e., Middlesex County in the Southwest Region), a respondent receiving the notice would be left in no doubt as to where and when the application would be heard or the relief being sought by the applicant, and the notice indicates the grounds and contemplated material to be relied upon by the applicant.

b. While it is true that the applicant’s material makes no express reference to the extraordinary remedy of certiorari, there could be no doubt that the goal of the application was to “quash” the specifically identified subpoena issued by Justice of the Peace Aleong on December 19, 2022.

c. Moreover, I once again was mindful of the Supreme Court of Canada’s decision in R. v. Jobin, supra, wherein it was expressly noted that the court was “faced with a situation where the appellants [had] not technically complied with [mandated] procedures”, but any ensuing jurisdictional questions in that regard were resolved by recognizing that the appellants had applied for relief included within “the expanded remedial scope of certiorari”.[^7] In my view, such an approach may be applied properly by way of analogy in the present case; i.e., where the applicant’s notice of application expressly asked the court to exercise its jurisdiction to make an order quashing the issued subpoena, which obviously forms one component of the court’s jurisdiction to grant the extraordinary remedy of certiorari.

d. Finally, I had regard to the provisions of Rule 2.01 of the Criminal Proceedings Rules of the Superior Court of Justice, which provides as follows: “A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.” In my view, this was an appropriate case for the exercise of that jurisdiction; i.e., dispensing, to the extent necessary for the application herein to proceed, with the need for the applicant’s material to comply perfectly with the formal requirements of the Criminal Proceedings Rules rather than the Rules of Civil Procedure. Without limiting the generality of the foregoing, in my view there was no discernible functional difference between what the applicant had done and what the applicable provisions of the Criminal Proceedings Rules required, and not granting such relief would represent a triumph of form over substance, effectively preventing the genuine substantive issues raised by the application from being addressed in a timely way.

[11] Having addressed and resolved that preliminary jurisdictional issue, I notionally moved on to consideration of the substantive issues raised by the application.

[12] In doing so, I was mindful throughout of various principles relevant to this application to quash an issued subpoena.

General principles

[13] In that regard, general principles governing all such applications include the following:

a. A subpoena, (Latin for “under penalty”), is a court order which commands the person named therein to appear at a specified time and place to give testimony about the matters in dispute between the parties. Further sub-classifications of subpoenas are possible; e.g., a subpoena ad testificandum orders a witness to appear and give testimony, while a subpoena duces tecum orders a witness to appear and to bring specified documents, records and/or things.[^8]

b. In Canada, s.698(1), s.699(1) and s.699(2) of the Criminal Code provide the starting point for analyzing whether a subpoena was improperly issued. In particular:

i. The provisions of s.698(1) address the circumstances in which a subpoena should be issued, and read as follows: “Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.” [Emphasis added.]

ii. The provisions of s.699(1) and s.699(2) address the matter of who is authorized to issue such a subpoena; a determination that depends on the court in which the relevant proceeding will be held, and in some cases the location of the person whose evidence is being sought. For example, in this case, identification of the proper “issuer” of the subpoena is governed by the provisions of s.699(2)(a), which reads as follows: “If a person is required to attend to give evidence before a provincial court judge acting under Part XIX or a summary conviction court under Part XXVII or in proceedings over which a justice has jurisdiction, a subpoena directed to the person shall be issued … by a provincial court judge or a justice, where the person whose attendance is required is within the province in which the proceedings were instituted.” [Emphasis added.]

c. As for the process pursuant to which a subpoena is issued pursuant to s.698(1), the Criminal Code actually is silent as to the form of inquiry to be made, except for indicating that an “out-of-province” subpoena issued by a superior court of criminal jurisdiction must be obtained “on application” by a party to the proceedings, pursuant to s.699(3).[^9] Without limiting the generality of the foregoing:

i. There is no requirement in the Criminal Code or elsewhere that a record be kept of what representations are made to the judge, justice or clerk being asked to issue a subpoena.[^10]

ii. There similarly is no requirement that any material be filed, except in relation to a s.699(2)(b) application before a superior court judge as noted above. A party seeking a subpoena therefore generally is not required to file any affidavit evidence, statutory declaration or similar documents to justify the issuance of a subpoena. Parliament did not consider it necessary to require such a formalized procedure in that regard.[^11] While a judge, justice or clerk being asked to issue a subpoena may require such material, or insist upon evidence under oath or affirmation, that is a matter within his or her discretion.[^12]

iii. However, if the issuer takes no steps whatsoever to satisfy himself or herself that the necessary precondition for issuing a subpoena has been met or satisfied, the issuer is abusing his or her power and discretion if he or she issues the subpoena. The issuer must make some examination of the underlying circumstances, although the extent of such an examination will depend on the circumstances of each situation.[^13]

iv. Ordinarily, however, a subpoena will issue as a matter of course upon the personal statement of counsel of record in a case, (as distinct from other agents or counsel), that the contemplated witness has material evidence to give. That is not to say that a subpoena must always issue upon such a statement of counsel. Again, whether to issue a subpoena is a matter within the issuer’s discretion, and must be exercised on a case-by-case basis. There will be cases where an issuer may require more details.[^14] One size does not fit all subpoena applications.[^15]

d. As for the determination of whether a subpoena should be issued in the first instance:

i. The issuance of a subpoena is not a mere administrative function. In determining whether to issue a subpoena, the judge, justice or clerk being asked to make such an order is exercising a statutory discretion, necessitating an inquiry by the issuer. There is no entitlement to a subpoena “for the asking” without more information being provided to the issuer.[^16]

ii. As noted above, the starting point for making the required determination is 698(1) of the Criminal Code, which requires that the desired witness is “likely to give material evidence”. That is the initial threshold, but the Criminal Code is silent as to how that threshold is met.[^17] Hemming those requesting subpoenas into a particular form of information would be inconsistent with the terms of s.698(1) of the Criminal Code, and inimical to the best interests of the administration of justice insofar as excessive formality would ensure triumphs of form over substance and serve no useful purpose. However, the party seeking the subpoena must “in some manner or other” satisfy the issuer that the proposed witness is likely to give material evidence.[^18]

iii. However, it is clear that “material evidence” is evidence that tends to prove or disprove a fact in issue. It is evidence that is pertinent to an issue in dispute.[^19]

iv. What s.698(1) requires is a basis upon which the issuer of a subpoena can conclude that it is probable that the proposed witness has material evidence to give. It must be more than a “reasonable hope”, a mere possibility, or something that exists in the requester’s “fevered imaginings”.[^20] A mere statement of unsupported conclusion does not discharge the burden on a party requesting a subpoena. Nor is it enough for a party requesting a subpoena to say nothing more than the prospective witness may have material evidence to give. The exercise of judicial determination of the likelihood of materiality contemplates some articulation of facts supportive of the pleaded belief that a court order ought to issue. The likely materiality of evidence must be contextualized to the specific case. In other words, the standard is a relative term, with materiality measured in light of the precise issues formulated in the litigation.[^21]

v. Section 698 nevertheless is drafted in permissive terms; i.e., the subpoena “may” be issued if the statutory threshold is met, but the decision to do so lies within the discretion of the issuer.[^22]

e. In relation to certiorari applications to quash a subpoena:

i. A rebuttable presumption of regularity applies to subpoenas that are valid on their face. The burden of displacing that presumption is on the party seeking to quash the subpoena by introducing evidence.[^23]

ii. In many if not most cases, there will be no formal transcript or other record of the precise manner in which a subpoena was obtained. Again, the filing of evidence is not required to obtain a subpoena, and a subpoena can and ordinarily will issue as a matter of course where a counsel of record personally has stated that the contemplated witness has material evidence to give.[^24]

iii. However, the situation changes significantly once a subpoena has been issued and the subpoena is then challenged by the proposed witness. The respondent seeking to sustain the subpoena then has the burden of showing, on a more fulsome record, that the proposed witness can give material evidence. Where the respondent provides no further evidence to justify the issuance of the subpoena, the subpoena will be quashed.[^25]

iv. On most applications to quash subpoenas, one or both parties therefore file affidavits or other material upon which the judge hearing the application considers whether, on an expanded record, the necessary precondition for issuing the subpoena was present; i.e., that it is likely that the proposed witness can give material evidence. Again, in relation to that aspect of such an application, the onus is on the respondent, who has the burden of proving that on a balance of probabilities.[^26]

v. On an application to quash a subpoena, the reviewing judge is entitled to review and examine not only the procedure that was applied to obtain the subpoena but also the merits of the grounds upon which the respondents based their claim that the proposed witness likely had material evidence to give, including reference to: the issues in dispute; whether the proposed evidence is reasonably capable of admission; whether the application could succeed based on the proposed evidence; and whether the “likely to give material evidence” test has been met. When dealing with applications to quash a subpoena, reviewing courts routinely and correctly examine such matters.[^27]

[14] The above principles apply in relation to all applications to quash a subpoena, but this case required consideration of further principles, having regard to the applicant’s submission that the relevant subpoena issued in this case was an abuse of process, and to the applicant’s assertion of parliamentary privilege.

[15] In relation to abuse of process concerns:

a. It bears repeating that, as noted above, section 698 of the Criminal Code is drafted in permissive terms; i.e., a subpoena “may” be issued if the statutory threshold set forth in the section is met, but the decision to do so lies within the discretion of the issuer. Accordingly, even in cases where it is established that the desired witness can give material evidence, (or indeed evidence that is material and arguably necessary), the court retains a discretion as to whether or not a subpoena should be issued or sustained.

b. At the risk of stating the obvious, service and receipt of an issued subpoena also are not trivial matters. To the contrary, there can be significant implications for the proposed witness. For example, a person properly served with a subpoena who does not attend at the time and place specified, a person who is about to abscond or who has absconded before receiving a subpoena, or a person who has been bound by a recognizance to attend and does not attend, can be arrested and held in custody for up to 30 days.[^28] Moreover, a person who fails to comply with a subpoena testificandum is guilty of contempt of court and is liable to 90 days in jail and a $100.00 fine.[^29] In short, a party who obtains a subpoena effectively has activated and engaged significant and extraordinary coercive power in relation to the person upon whom the subpoena is served.

c. Mindful of such realities, our courts repeatedly have emphasized that judges “must be vigilant and conscious of the potential for abuse of the power to command citizens, whether representatives of the Crown or not, to attend court to testify”. The application for a subpoena “must be demonstrably bona fide and it must therefore never be converted into a ‘ploy’ or into an unjustified discommoding or harassment of any citizen, whether office-holder under the Crown or not”.[^30] [Emphasis added.]

d. By way of example, and without limiting the generality of the foregoing, courts will quash a subpoena in order to restrain and prevent:

i. an accused’s efforts to compel Crown counsel to appear as a witness in order to answer explain the exercise of prosecutorial discretion and/or the decision to prosecute the accused;[^31]

ii. efforts by an accused to conduct a “fishing expedition” or “to examine in the hope that something might turn up that would assist”;[^32] and

iii. an accused’s attempt to further political objectives by compelling a witness to attend trial.[^33]

[16] General considerations and principles relating to parliamentary privilege include the following:

a. The Parliament of Canada, provincial legislatures, territorial legislatures and their members have certain powers, privileges and immunities which ensure their proper and unimpeded functioning. In that regard, “parliamentary privilege” has been defined as the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and three territories, in order for those legislators to do their legislative work.[^34]

b. It is important to recognize and bear in mind that, in Canada, parliamentary privilege forms part of the general public law of the land. In particular, the privileges and immunities of the Parliament of Canada and its members are rooted in the Constitution as well as statute law. In that regard:

i. At a general constitutional level, parliamentary privileges are part of the Canadian constitution by virtue of the preamble of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, which provides that Canada is to have a “Constitution similar in Principle to that of the United Kingdom”. The inherent privileges of Canada’s legislative bodies, (i.e., those “privileges which were necessary for the maintenance of order and discipline during the performance of their duties”), fall within the group of principles constitutionalized by virtue of that preamble.[^35]

ii. However, parliamentary privileges also expressly form part of the Canadian constitution via section 18 of the Constitution Act, 1867, which specifically deals with the subject of parliamentary privilege in the following terms:

18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, bus so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

iii. In terms of statute law, Parliament has acted on that authority, provided by section 18 of the Constitution Act, 1867, by addressing the subject of parliamentary privilege in sections 4 and 5 of the Parliament of Canada Act, R.S.C. 1985, c.P-1, which read as follows:

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

a. such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and

b. such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons, House of Parliament of the United Kingdom and by the members thereof.

5. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts of Canada, and by and before all judges, be taken notice of judicially.

iv. Pursuant to the above constitutional and statutory provisions, Canadian parliamentarians clearly enjoy certain privileges, immunities and powers, and the scope and content of those privileges, immunities and powers clearly must be measured against those “held, enjoyed and exercised” by the Parliament of the United Kingdom, especially in 1867.[^36]

c. In Canada, there are several parliamentary privileges applying to and protecting parliamentarians. They exist to enable the members to attend the assembly without disturbance, to enable the assembly to perform its functions, and to guard the functions of Parliament undisturbed. The recognized “individual privileges” enjoyed by Members of Parliament in that regard include freedom of speech, freedom of arrest in the civil process, exemption from jury service, and the privilege relating to Members summoned as witnesses; i.e., the right not to attend as a witness.[^37]

d. In relation to a Member of Parliament’s individual parliamentary privilege or right not to attend as a witness, one must bear in mind the following:

i. Parliament has the paramount right to the attendance and service of its Members. In that regard, it should be remembered that when Parliament is in session, it can be called to sit at any time. When Parliament is in session, it therefore is regarded as being assembled, whether actually sitting or not. Any call for a Member of Parliament to attend elsewhere while Parliament is in session, (regardless of whether it is actually sitting or not), accordingly is not a call that need be answered. In particular, the Member is not compelled or compellable to attend as a witness before any court or tribunal in Canada, (whether in relation to a criminal, civil or military matter), while Parliament is in session. Immunity from subpoenas is based on the same principal as other personal or individual parliamentary privileges; i.e., the paramount right of Parliament to the attendance and service of its members.[^38]

ii. Moreover, the right of a Member of Parliament to refuse to attend court as a witness exists not only during a parliamentary session, but also during the 40 days preceding a parliamentary session and the 40 days following a parliamentary session; i.e., because Parliament requires the availability of its members throughout an entire parliamentary session as well as the traditional 40-day period before and after the start and end of a session. It is an undoubted and inalienable right, supported by a host of precedents. In particular, that parliamentary privilege relating to testimonial immunity existed in 1867, and there has been no development in constitutional or statute law since 1867 to displace it. The privilege applies regardless of whether the attendance of a Member of Parliament is sought to give evidence at trial, or to attend at examinations for discovery. The privilege is also absolute, and applies even where a Member has been named personally as a party to an action. It is a protective “cloak” worn by Members of Parliament that affords such legislators its benefit; a privilege that need not be claimed in order for such Members “to enjoy its protection against outside elements”, and one which applies unless it is “thrown off” by express or implied waiver.[^39]

[17] With all of the above factual background and principles in mind, I turned to consideration of the positions advanced during the hearing before me.

Party positions

[18] I will have more to say about the parties’ positions during the course of my analysis. For now, however, those positions may be summarized generally as follows:

a. It was the applicant’s contention that the relevant subpoena should be quashed for three separate but independently sufficient reasons:

i. It was said that the respondent Mr Marshall had not shown that the applicant had any material evidence to give in relation to the underlying proceeding.

ii. It was said that the underlying subpoena was an abuse of process, insofar as the respondent Mr Marshall and his counsel were attempting to employ the coercive power associated with a subpoena and mandated attendance for cross-examination for purposes not associated with determination of the underlying criminal proceeding on its merits; i.e., for political purposes irrelevant to the underlying criminal proceeding.

iii. It was said that the applicant’s individual parliamentary privilege, as a Member of Parliament, was an absolute bar to any court process purportedly compelling him to attend and appear as a testifying witness at Mr Marshall’s criminal trial, insofar as that trial was scheduled to take place while Parliament currently remained in session.

b. Crown counsel indicated that the Crown essentially took no position in relation to the application before me, and instead appeared primarily to provide the court with additional evidence concerning the underlying criminal proceeding, (i.e., the transcript of Mr Marshall’s admittedly voluntary and admissible statement to the police, described above), clarification and confirmation of the Crown’s position in that regard, and legal authority the Crown considered relevant to my determination – although I note again that the latter already had been submitted by counsel for the applicant.

c. Beyond the preliminary jurisdictional objection addressed above, (i.e., concerning Mr Marshall’s position that the application ought to have been dismissed, on the basis it was supposedly brought in an “improper forum”), submissions by the counsel for the respondent Mr Marshall included the following contentions:

i. It was said that the applicant’s desired evidence was both material and necessary; e.g., insofar as such evidence was said to be “absolutely necessary” to assist the trier in determining the underlying facts and whether the Crown had proved each element of the charged offence beyond a reasonable doubt. In that regard, it was said, inter alia, that the “Crown’s narrative” in the underlying case was that Mr Marshall had “struck the Prime Minister with a weapon”, (i.e., that Mr Marshall specifically had been charged with an assault involving the application of force), and that the alleged inconsistent statements made by the applicant were material evidence to be considered by the trier of fact in that regard.

ii. It was said that nothing before me supported the suggestion that Mr Marshall and/or his counsel were abusing the subpoena process in an attempt to further Mr Marshall’s political objectives, and that this case was distinguishable from earlier precedents, including R. v. Brown, supra; e.g., insofar as there was said to be, in this case, no similar indications of political motivation, no admission of the alleged underlying assault, and no suggestion that the accused intended to raise a defence of consent without pointing to any evidence to support that claim.

iii. It was expressly conceded “that as a member of parliament (sic) the Prime Minister enjoys the privilege of testimonial immunity and therefore cannot be compelled to give testimony while Parliament is in session”, that the “jurisprudence is clear that this Court’s analysis can go no further”, that “the Parliamentary Privilege of testimonial immunity is authoritatively established”, that “if a category of Parliamentary Privileges (sic) [is] authoritatively established then it is up to Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate”, and that, in the circumstances, “only Parliament, and the Canadian public can judge the appropriateness of the application in this case”. Notwithstanding those express concessions, counsel for Mr Marshall nevertheless went on to advance several further arguments before me, which included the following:

1. that it was “entirely inappropriate” for the applicant to “exercise his privilege and evade the enforcement of the subpoena”, insofar as parliamentary privileges “are not meant to impede the course of justice”, and “should be waived here”;

2. that enforcement of the applicant’s parliamentary privilege, (i.e., by quashing the relevant subpoena), would infringe upon and/or subvert the rights guaranteed to Mr Marshall by sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, (“the Charter”), and “impede the course of justice”;[^40]

3. that the applicant’s rights “are not superior to Mr Marshall’s”, and that the proper approach to any apparent conflict between those competing rights was “not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them”;[^41]

4. that “the rule of law” is one of the underlying principles upon which Canada’s constitution is founded, and “requires state authorities to operate within the law and to be held to account”, as “nobody, however rich or powerful, is above the law”; and

5. that the highlighting of suggested inconsistencies in the applicant’s statements, through cross-examination, would support Mr Marshall’s contention of an “abuse of power” by the applicant; e.g., insofar as the applicant’s statements to the media were said to “irrefutably reverberates (sic) the platform of his political campaign” by tying the underlying incident “to the political opposition to the Government’s pandemic response by the ‘antivaxxer mob’”, thereby intending “to garner sympathetic votes or use the incident as a rallying point against his political opponents”.

[19] With all of the above in mind, I turn finally to my analysis and assessment of those competing positions.

Analysis

[20] To the extent it was suggested on behalf of the applicant that the relevant subpoena was issued inappropriately through an irregular process, (e.g., by the respondent Mr Marshall and his counsel having failed to tender any evidence in that regard, including the articling student affidavit that was said to be furnished to Justice of the Peace Aleong but actually was not), I was not satisfied that the applicant satisfied his burden of rebutting the presumption of regularity in that regard; i.e., the rebuttable presumption that the relevant subpoena was valid on its face. Without limiting the generality of the foregoing:

a. As noted above, the absence of any formal and complete record of the precise manner in which the subpoena was obtained is not a fatal defect to the regularity of the issuing process. No such record is required, and the absence of such a record case does not differentiate it from many if not most cases where a subpoena is issued. If anything, to the extent there is a record of the statement from defence counsel Millar provided to the issuing Justice of the Peace, and Her Worship’s written endorsement in response, the record here was more complete and preserved than the situation encountered in many other cases.

b. As also noted above, there is no requirement that any material be filed in relation to an application for a subpoena in this situation – i.e., an application made pursuant to s.698(1) and 699(2)(a) of the Criminal Code – let alone an affidavit sworn by an articling student. The failure by defence counsel to furnish such an affidavit as promised therefore also is not a fatal defect to regularity of the process by which the relevant subpoena was issued.

c. Nor, in my view, does the available record suggest that this was an instance of a subpoena being issued simply “for the asking”. To the contrary:

i. As noted above, the relevant subpoena was not issued when first requested. In particular, the Justice of the Peace before whom the request initially was placed, (supported only by a statement from a law clerk working for defence counsel that the applicant was the complainant identified in the underlying criminal proceeding and “would therefore have knowledge of the facts” in the matter), declined to issue the requested subpoena, indicating that “the test for issuing a subpoena to the Prime Minister [had] not been met”. While the brief endorsement issued by Justice of the Peace Waugh in that regard does not indicate the precise reason why the applicable test had not been met, I think one possible and legitimate inference is that Her Worship was unwilling to issue a subpoena in such circumstances based solely on a statement by a law clerk, as opposed to a statement made directly by counsel of record for the defendant. In other words, Her Worship effectively called for the provision of a further and better basis for considering the request to issue such a subpoena.

ii. That further and better basis was provided via the document entitled “R. v. Marshall – Evidence Supporting Subpoena Application (Criminal Code ss. 698, 699, Form 16)”, which was put before Justice of the Peace Aleong with defence counsel’s renewed request that the desired subpoena be issued. In my view:

1. While not expressly signed by the lawyers who were defence counsel of record for Mr Millar, it would have been fair for Justice of the Peace Aleong to infer that was the case. In particular, the document came from their law firm, repeatedly makes use of the pronouns “we” and “our” in making its various written submissions, (e.g., by indicating what “we” would be relying upon at Mr Miller’s trial, and referring to “our client, Shane Marshall”), and clearly was prepared by someone with legal training insofar as it makes repeated reference to numerous statutory provisions and legal authorities.

2. As a document essentially constituting a statement by counsel of record indicating that the applicant was likely to give material evidence at Mr Marshall’s trial, it provided, (as noted above), a basis our Court of Appeal regards as sufficient and acceptable for the issuing of a subpoena to follow ordinarily “as a matter of course”.

3. In this case, Justice of the Peace Aleong wrote her short handwritten endorsement, agreeing to issue the requested subpoena, on that submitted statement by defence counsel of record for Mr Marshall. In the circumstances, there can be no doubt that Justice of the Peace Aleong considered that statement by counsel of record when deciding how to exercise the statutory discretion conferred upon her by s.698(1) of the Criminal Code. Her Worship accordingly fulfilled her obligation to make “some examination of the underlying circumstances” before deciding to issue the requested subpoena.

d. For purposes of my decision, I therefore approached the matter on the basis that the relevant subpoena had been issued in a procedurally regular way.

[21] As noted above, once the relevant subpoena was challenged by the applicant, through the bringing of the application that came before me, it was the respondent seeking to sustain the subpoena who bore the onus of showing, on a more fulsome record than the one placed before Justice of the Peace Aleong, that the applicant could give material evidence at Mr Marshall’s trial.

[22] As also noted above, counsel for Mr Marshall also conceded, (both in their statement provided to Justice of the Peace Aleong and again in their factum submitted to me), that “given the Prime Minister’s position of responsibility, the additional criterion of ‘necessity’ [was] to be considered” in that regard.[^42]

[23] In my view, the respondent Mr Marshall failed to meet that onus placed on him to sustain the subpoena; i.e., by showing that the applicant could give evidence that was material and necessary in Mr Marshall’s criminal trial. Without limiting the generality of the foregoing, my considerations in that regard included the following:

a. Counsel for the defendant placed considerable emphasis on the fact that the applicant was the named “complainant” identified in the charge levied against Mr Marshall in the underlying sworn Information giving rise to that criminal proceeding. The implicit if not explicit suggestion, (made more explicit in the initial material submitted to obtain the subpoena), was that the applicant therefore was an accuser who inherently would have relevant information, and whom the accused Mr Marshall therefore should have a right to face and cross-examine. However:

i. As counsel practising criminal law will or should know, (but those unfamiliar with such matters may not), the term “complainant” used by our legal system does not necessarily refer to a person who has “complained” about an accused person’s conduct, in turn leading to a charge or charges against the accused person based on such a “complaint”. In fact, section 2 of the Criminal Code expressly confirms that the term “complainant” means and refers only to “the victim of an alleged offence”. [Emphasis added.] Use of the term “complainant” in our criminal law procedures, especially in relation to matters being tried by a jury, was thought to be a preferable and perhaps less “loaded” term than “victim”; i.e., insofar as referring to the person targeted or affected by an alleged criminal offence as a “victim” might suggest incorrectly to jurors or others that commission of an alleged crime definitely had been established, in turn undermining the presumption of innocence fundamental to our system of criminal justice.[^43]

ii. In the case before me, there was no evidence to indicate that the criminal charge against Mr Marshall was prompted by, or dependent upon, any “complaint” made by the applicant. To the contrary:

1. The charge as worded against Mr Marshall contains no wording to indicate or suggest that the applicant himself has made any allegation against Mr Marshall. As noted above, the objectively worded Count 1 of the relevant Information simply reads as follows: “COUNT 1 – Shane Zechariah MARSHALL – on or about the 8^th day of September in the year 2021 at the City of London in the Southwest Region did, in committing an assault on Justin TRUDEAU, use a weapon, namely a blunt object, contrary to Section 267, clause (a) of the Criminal Code of Canada.”

2. The material before me indicates that the underlying incident was a very public one, witnessed by many individuals, and documented by numerous photographs and video recordings.

3. The police interview of Mr Marshall, conducted immediately after his arrest, confirms that the police had and were relying upon photographs and videos clearly showing, (as Mr Marshall himself confirmed during the course of that police interview), that Mr Marshall had thrown gravel at the applicant which struck the applicant. No mention whatsoever was made, during that police interview, of any statement provided to the police by the applicant. Indeed, the applicant is not mentioned during the course of the interview except as a person who “gets gravel thrown on him” in the photographs and videos, and as a person who would have to be identified by name in proximity restrictions that would be imposed as a condition of Mr Marshall’s interim release from custody.

4. In short, the material before me indicates that, at the time Mr Marshall was arrested and charged, the police possessed and were relying upon objective evidence, not dependent on any statement or complaint by the applicant, providing reasonable and probable grounds to believe that the applicant had been “the victim” of an offence.

5. Although the factum filed by defence counsel indicated that “The Prime Minister made statement (sic) to the police”, and the assertion was not disputed by counsel for the applicant or Crown counsel, I was provided with no evidence or further details regarding any such statement, (e.g., in terms of its length, content or timing), and it was not disputed that the applicant was not one of the witnesses, (among the three police witnesses and one-to-three civilian witnesses), whom Crown counsel intended to call as a witness at trial.

iii. In my view, the applicant’s status as “the victim of an alleged offence”, and therefore a “complainant” within the meaning of section 2 of the Criminal Code, accordingly provided no support for defence counsel’s argument that the relevant subpoena should be sustained.

b. It was argued by defence counsel that the applicant was present at the location, day and time of the alleged offence, and that his testimony therefore would be material in assisting the trier in determining whether each element of the charged offence, (including but not limited to the alleged actus reus), had been proved beyond a reasonable doubt. In that regard, specific reference was made to the supposed “absolute necessity” of testimony from the applicant to address such questions as: whether force was applied to his person; whether any such force was applied to his person without his consent; whether he anticipated the gravel being thrown; whether the accused “had the present ability to affect (sic) an application of such force”, which I understood to be a reference to whether the accused had the “present ability to effect his purpose” in attempting “to apply force to another person” as contemplated by s.265(1)(b) of the Criminal Code, discussed in greater below; and whether the accused intended to throw gravel at the applicant, establishing the mens rea of the charged offence. In my view, there was no merit to such arguments. In that regard:

i. Any discussion relating to the essential elements of a charged offence obviously requires consideration of the relevant provisions of the Criminal Code. In that regard:

1. The accused in this case is charged with assault with a weapon contrary to s.267(a) of the Criminal Code, the relevant portions of which read as follows: “Every one who, in committing an assault, … carries, uses or threatens to use a weapon … is guilty of an indictable offence …”

2. The term “weapon” is defined in section 2 of the Criminal Code to mean “anything used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person, and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will.

3. Perhaps of greatest relevance, for present purposes, is the definition of “assault” set forth in s.265(1) of the Criminal Code, which effectively is incorporated into the s.267(a) offence of “assault” with a weapon, with which Mr Marshall was charged. In that regard, s.265(1) of the Criminal Code reads as follows:

4. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or caused that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

ii. For present purposes, a number of things are immediately noteworthy about that s.265(1) definition of assault:

1. Lack of consent by a victim is only relevant to proving an “assault”, (i.e., an essential element of the offence), if the Crown is attempting to establish an “assault” pursuant to the first permissible method of doing so; i.e., pursuant to s.265(1)(a) of the Criminal Code. The presence or absence of a victim’s consent is irrelevant to making out an “assault” pursuant to s.265(1)(b) or s.265(1)(c) of the Criminal Code. In other words, the offence of “assault”, incorporated by reference into the offence of assault with a weapon, may be made out without the Crown necessarily having to prove beyond a reasonable doubt, as an essential element of offence, lack of consent on the part of a victim.

2. Only the first method of proving an “assault”, set forth in s.265(1)(a) of the Criminal Code, requires proof of an intentional application of force by an accused. In other words, the offence of “assault”, incorporated by reference into the offence of assault with a weapon, may be made out without the Crown necessarily having to prove beyond a reasonable doubt, as an essential element of the offence, that the accused applied force intentionally to anyone. In particular, pursuant to s.265(1)(b) or s.265(1)(c) of the Criminal Code, sometimes referred to as “constructive assault”, an “assault”:

a. can be made out pursuant to s.265(1)(b) by proof that the accused merely attempted or threatened to apply force to another person by an act or a gesture, if the accused either:

i. had the present ability to effect or his or her purpose; or

ii. caused that other person to believe on reasonable grounds that the accused had the present ability to effect his or her purpose; or

b. can be made out pursuant to s.265(1)(c) by proof that the accused merely accosted or impeded another person, or begged, while openly wearing or carrying a weapon or imitation weapon.

3. As the preceding sub-paragraph makes clear, the offence of “assault”, incorporated by reference into the offence of assault with a weapon, therefore may be made out pursuant to s.265(1)(b) of the Criminal Code without the Crown necessarily having to prove, beyond a reasonable doubt, that the accused caused another person, to whom the accused attempted or threatened to apply force by an act or gesture, to believe on reasonable grounds that the accused had the present ability to effect his or her purpose. It will suffice if the Crown merely proves beyond a reasonable doubt that the accused attempted or threatened to apply force intentionally to that other person and had the present ability to effect his or her purpose.

iii. Insofar as it was argued by counsel for Mr Marshall that the applicant could give evidence that was material and necessary in the underlying criminal proceeding to assist the trier in determining whether force had been applied to the applicant:

1. As the above analysis makes clear, a determination of whether force was applied to the applicant may not even be required in this case; e.g., if the Crown relies upon s.265(1)(b) of the Criminal Code and proves beyond a reasonable doubt that Mr Marshall merely attempted to apply force to the applicant by the act of throwing gravel, and had the present ability to effect his purpose.

2. While counsel for Mr Marshall suggested that “the accusation against Mr Marshall is that he struck the Prime Minister with a weapon”, (emphasis added), the suggestion is simply inaccurate. As I have noted a number of times now, but will repeat again for ease of reference, the accusation set forth in the single count of the underlying Information is that “Shane Zechariah MARSHALL – on or about the 8^th day of September in the year 2021 at the City of London in the Southwest Region did, in committing an assault on Justin TRUDEAU, use a weapon, namely a blunt object, contrary to Section 267, clause (a) of the Criminal Code of Canada”. No part of that accusation includes an assertion that the relevant “weapon” or “blunt object” struck the applicant. As emphasized by Crown counsel during the hearing before me, it remains open to the Crown to rely, at the trial of Mr Marshall, on s.265(1)(a) or s.265(1)(b) of the Criminal Code. For present purposes, however, the point remains that a determination by the trier as to whether force was applied to the applicant, (i.e., that the applicant was struck by the thrown gravel), may not even be necessary in the underlying criminal proceeding.

3. In my view, the question of whether force was applied to the applicant is not truly an issue in the underlying criminal proceeding even if the Crown seeks to rely on s.265(1)(a) of the Criminal Code to make out the requisite “assault” upon which an assault with a weapon would be predicated. In particular, as noted above, Mr Marshall has agreed and conceded, in his voluntary and admissible statement to the police, that the thrown gravel did strike the applicant, as shown in photographs and video of the incident.

4. Moreover, even if the Crown seeks to rely on s.265(1)(a) of the Criminal Code to make out the requisite “assault” upon which an assault with a weapon would be predicated, and the application of force to the applicant had not been conceded, I see no basis for the suggestion by counsel for Mr Marshall that the applicant’s testimony in that regard would be “absolutely necessary”. Without limiting the generality of the foregoing:

a. As noted above, the underlying incident was not only witnessed by numerous others who were present, but there is entirely objective and reliable evidence, in the form of photographs and video recordings, showing that the gravel did strike the applicant. In such circumstances, the testimony of the applicant in that regard seems completely unnecessary, (rather than “absolutely necessary”), for the trier to make any required determination in that regard.

b. For various reasons, I was not persuaded by submissions from Mr Marshall’s counsel that it was necessary to elicit testimony from the applicant to highlight suggested inconsistencies about the applicant’s subjective belief as to whether or not he was struck by the thrown gravel. In particular:

i. Again, as Mr Marshall has conceded and admitted that the applicant was struck by the thrown gravel, (as depicted in the objective photographs and video recordings presented to him during his police interview), it matters not whether the applicant subjectively felt or did not feel that application of force to his person. In particular, in my view, there would be nothing inherently inconsistent between objective evidence confirming that force was applied to the applicant’s person, (i.e., by gravel striking the applicant as shown in the relevant photographs and video recordings), and the applicant perhaps not knowing or being sure whether force was applied to his person. As we routinely instruct our juries, the application of force required to establish an assault pursuant to s.265(1)(a) of the Criminal Code includes “any physical contact with another person, whether violent or gentle”.[^44] [Emphasis added.] Thus, “even a gentle touch” will suffice.[^45] Objective evidence is clearly capable of confirming such a “gentle touch” even if the person objectively being touched may not have noticed it subjectively or been subjectively sure about that physical contact at the time physical contact was made.

ii. As I indicated during the course of counsel submissions, in my view the arguments being made by counsel for Mr Marshall about the supposedly vital importance of calling the applicant to provide testimony in relation to the application of force issue, in order to highlight suggested inconsistencies in the applicant’s statements in that regard, were non-sensical. In particular:

1. If application of force to the applicant became an issue at all in the underlying criminal proceeding, i.e., if the Crown sought to establish a predicate “assault” by relying on s.265(1)(a) of the Criminal Code, Mr Marshall’s interest in that regard inherently would be focused, or at least should be focused, on evidence militating in favour of a finding by the trier that there actually was no application of force to the applicant, (i.e., that the gravel did not strike the applicant), or that there was reasonable doubt in that regard. Mr Marshall inherently has no interest, or at least should have no interest, in the presentation of evidence indicating that there actually was application of force to the applicant; i.e., that the thrown gravel did strike the applicant.

2. In such circumstances, it might make sense for Mr Marshall and his counsel to desire the presentation of evidence at trial of the applicant’s recorded statements, made on his campaign bus immediately after the incident, arguably suggesting that the applicant himself was not sure that he had been struck by the thrown gravel. As the Crown has indicated that it has no intention of calling the applicant as a witness, counsel for Mr Marshall would have to do so to elicit that desired evidence, inherently supportive of their client’s position in relation to that suggested essential element of the charge.

3. However, in my view, the suggestion that counsel for Mr Marshall then would want to undermine that evidence from the applicant, helpful from the accused’s perspective, (insofar as it might militate in favour of a finding of reasonable doubt as to whether force had been applied to the applicant), by then eliciting evidence of further statements by the applicant, (e.g., as recorded during a media scrum the following day), arguably suggesting certainty that the applicant had been struck by the thrown gravel -- i.e., that there had been force applied to the applicant in the sense required by s.265(1)(b) of the Criminal Code – makes no sense whatsoever, unless the true purpose of the desired cross-examination and highlighting of suggested inconsistencies was something unrelated to the trier’s determination of whether a possible essential element of the charged offence had been established beyond a reasonable doubt; something addressed in more detail below, in my discussion of abuse of process.

4. Counsel for Mr Marshall attempted to address my stated concerns in that regard by arguing that the highlighting of suggested inconsistencies in the applicant’s statements would support more general submissions that, since the applicant arguably was unsure about such aspects of the underlying incident, that in turn would support submissions that there were uncertainties underlying the overall “narrative” being put forward by the Crown, in turn supporting a finding of reasonable doubt capable of defeating the charge against Mr Marshall. I did not find the response persuasive. Criminal trials properly are approached by a focus on the essential elements of a charged offence, and a corresponding focus on whether the evidence relating to each essential element of the charged offence has or has not been proven beyond a reasonable doubt. In my view, vague allusions to unfocused doubt about unspecified aspects of the overall “Crown narrative” were singularly unhelpful in terms of helping the respondent Mr Marshall satisfy his burden in the hearing before me.

5. For such reasons, I was not persuaded that the applicant could give any material evidence, let alone material and necessary evidence, in relation to whether or not force had been applied to the applicant.

iv. Insofar as it was argued by counsel for Mr Marshall that the applicant could give evidence that was material and necessary in the underlying criminal proceeding to assist the trier in determining whether force had been applied to the applicant without the applicant’s consent:

1. As noted above, the applicant’s lack of consent to any application of force will be a complete non-issue in the underlying criminal proceeding if the Crown seeks to establish a predicate “assault”, underlying the alleged assault with a weapon, by relying on one of the forms of “constructive assault” permitted by s.265(1)(b) and s.265(1)(c) of the Criminal Code. Again, a victim’s lack of consent, (i.e., to a relevant application of force), is an essential element of an “assault” only if the method relied upon by the Crown to prove assault is that contemplated by s.265(1)(a) of the Criminal Code.

2. However, even if the Crown does seek to establish a predicate “assault” through reliance on s.265(1)(a) of the Criminal Code in the underlying criminal proceeding, I am inclined to agree with counsel for the applicant that “consent realistically is not in issue”, and that there actually is no air of reality to any suggestion that the applicant somehow consented to the relevant application of force giving rise to the charge against Mr Marshall; i.e., an inherently absurd suggestion that the applicant somehow consented to having gravel thrown at him. In my view, there is nothing whatsoever in the evidence before me to suggest that existence of any such consent by the applicant realistically will be an issue for determination by the trier in the underlying criminal proceeding.

3. Moreover, I note that, although the statement of counsel presented to Justice of the Peace Aleong emphasized that the applicant was “the only person who can say whether force was applied to his person without his consent”, (emphasis added), the submissions of counsel for Mr Marshall in relation to the hearing before me seemed to suggest that Mr Marshall was not suggesting applicant consent to any application of force to his person. In particular, that was one of the bases upon which counsel for Mr Marshall expressly sought to distinguish the underlying factual context in R. v. Brown, supra; i.e., a case wherein the accused, facing a charge of assault or assault with a weapon on Prime Minister Chretien, and trying to sustain a subpoena issued to compel Prime Minister Chretien’s attendance at the accused’s criminal trial to provide testimony supposedly relevant to a defence of “consent”, attempted to argue that the Prime Minister impliedly had given his consent to having a pie tossed into his face.

4. For such reasons, I was not persuaded that the applicant’s “consent” or lack thereof to an application of force was even an issue in the underlying criminal proceeding, let alone a matter in respect of which the applicant’s testimony would be material and necessary.

v. Insofar as it was argued by counsel for Mr Marshall that the applicant could give evidence that was material and necessary in the underlying criminal proceeding to assist the trier in determining whether the applicant anticipated gravel being thrown:

1. With respect, such arguments seemed to reflect an outdated and now incorrect belief that an intended victim’s awareness of an attempted or threatened assault, (otherwise described as an intended victim’s apprehension of danger or threat of danger), is an essential element the Crown must prove beyond a reasonable doubt in order to establish an “assault” pursuant to s.265(1)(b) of the Criminal Code or otherwise, and therefore an assault with a weapon.

2. Such a belief was correct when such matters were addressed by the common law. As noted by Justice Moldaver in R. v. Melaragni, [1992] O.J. No. 4178 (Gen.Div.), at paragraph 39: “The actus reus of assault at common law consisted in the expectation of physical contact which the offender created in the mind of the person threatened. Absent such expectation, there could be no assault.” However, as also noted and found by Justice Moldaver in paragraph 49 of the same decision, that contemplated actus reus of assault at common law has not survived and been implanted into the requirements for a finding of “assault” pursuant to s.265(1)(b) of the Criminal Code. In particular, after noting and explaining how the Quebec Court of Appeal had arrived at the same conclusion in R. v. Colburne (1991), [1991 3701 (QC CA)], 66 C.C.C. (3d) 235 (Que.C.A.), Justice Moldaver said this:

In my respectful opinion, Mr Justice Proulx has correctly stated the law. I am satisfied that when Parliament created the offence of assault, it recognized the distinction at common law between an assault and battery and attempted to combine these two common law offences into one statutory offence. In s.265(1)(b), Parliament chose to define as an assault that which at common law would have amounted to an attempted battery. In doing so, Parliament opted to remove the element of apprehension on the part of a victim where the wrongdoer had attempted to apply force and had the present ability to effect his purpose. [Emphasis added.]

3. In short, the supposed “essential element” of the applicant’s expectation of physical contact, (i.e., the applicant’s anticipation of gravel being thrown), actually is not something the Crown need prove beyond a reasonable doubt to establish a predicate “assault” in its case against Mr Marshall. The existence or non-existence of such an expectation or anticipation accordingly will not be an issue in the underlying criminal proceeding, and whether or not the applicant has any evidence in that regard is therefore irrelevant. Evidence relating to an irrelevant matter is neither material nor necessary.

vi. Insofar as it was argued by counsel for Mr Marshall that the applicant could give evidence that was material and necessary in the underlying criminal proceeding to assist the trier in determining whether the accused had the “present ability to effect his purpose” in attempting “to apply force to another person”:

1. In the abstract, whether or not Mr Marshall had a “present ability” to “apply force to another person” when he attempted to do so, (i.e., whether he had an ability at the relevant time to throw pieces of gravel in an attempt to have them hit the applicant), would be an issue in the underlying criminal proceeding in relation to any effort by the Crown to establish a predicate “assault”, (as a component of assault with a weapon), by relying on s.265(1)(b) of the Criminal Code.

2. In this case, however, it seems unlikely that the applicant is likely to have any evidence in that regard. In particular, the material prepared by Mr Marshall’s own counsel, in support of their efforts to obtain and sustain the relevant subpoena, acknowledges that “As the PM approached the open door to his bus, pebbles or small gravel pieces were witnessed flying in his vicinity, while he was turned in the opposite direction”. [Emphasis added.] In such circumstances, the applicant inherently had no ability to see such pebbles or gravel pieces being thrown so as to fly in his vicinity, and therefore no ability to observe the “present ability” of the thrower, (admittedly Mr Marshall), to effect the thrower’s alleged purpose; i.e., attempting to apply force to the applicant via the thrown pebbles or small pieces of gravel.

3. In an effort to sustain this suggested basis for the applicant having evidence that was material and necessary for the underlying criminal proceeding, counsel for Mr Marshall argued that the applicant’s evidence as to whether the pebbles or small pieces of gravel struck the applicant would constitute evidence relating to the ability of Mr Marshall to successfully throw such objects at the applicant. However, such logic effectively devolves into nothing more than a renewed submission that the applicant has evidence that is material and necessary to a determination of whether the applicant actually was struck by the thrown gravel; a submission already rejected for the reasons outlined above. At the risk of repetition, I emphasize again that:

a. Mr Marshall has conceded/admitted, during his voluntary and admissible statement provided to the police, that the applicant was struck by the thrown gravel, as shown by photographs and video recordings of the underlying incident;

b. the question of whether the applicant was struck by the thrown gravel accordingly is not truly an issue in the underlying criminal proceeding;

c. evidence relating to that question accordingly is not “material”; and

d. any evidence the applicant may have in relation to that question is not “necessary”, let alone “absolutely necessary”.

vii. Finally, insofar as it was argued by counsel for Mr Marshall that the applicant could give evidence that was material and necessary in the underlying criminal proceeding to assist the trier in determining whether the accused intended to throw gravel at the applicant, establishing the mens rea of the charged offence:

1. In my view, there was nothing in the evidence before me to indicate or even suggest that the applicant had any knowledge or awareness of Mr Marshall’s presence, statements or conduct at the underlying campaign event prior to gravel being thrown at the applicant. Moreover, as noted above, counsel for Mr Marshall, in their material tendered to obtain and sustain the relevant subpoena, expressly acknowledged that, when the gravel was thrown, the applicant was approaching the open door of his campaign bus and “turned in the opposite direction”. While the mens rea of Mr Marshall might very well be an issue in the underlying criminal proceeding, I saw no indication that the applicant would have any evidence relating to that Mr Marshall’s state of mind or purpose, having regard to such realities.

2. Counsel for Mr Marshall nevertheless sought to sustain this suggested basis for the applicant having material and necessary evidence relation to the mens rea issue by submitting:

a. that Mr Marshall’s defence at trial would involve a contention that he did not intend to throw gravel at the applicant, but instead reached down to pick up gravel and throw it generally into the air as an act of “celebration” once the applicant’s campaign event had ended;

b. that evidence as to whether or not the gravel was thrown by Marshall in a manner sufficient to strike the applicant had relevance to whether or not Mr Marshall intended to throw gravel at the applicant; and

c. that testimony from the applicant as to whether or not he had been struck by the thrown gravel accordingly was once again evidence that was “material”, (insofar as it related to something that was clearly an issue in the underlying criminal proceeding), and “absolutely necessary” for the trier to have in order to make a proper determination in that regard.

3. Even if one accepts such tortuous logic, in my view the submission of counsel for Mr Marshall in that regard once again devolves into a submission that evidence from the applicant is necessary for the trier to make a proper determination as to whether the applicant was struck by gravel admittedly thrown by Mr Marshall. At the risk of further repetition, I note yet again that:

a. Mr Marshall has conceded/admitted, during his voluntary and admissible statement provided to the police, that the applicant was struck by the thrown gravel, as shown by photographs and video recordings of the underlying incident;

b. the question of whether the applicant was struck by the thrown gravel accordingly is not truly an issue in the underlying criminal proceeding;

c. evidence relating to that question accordingly is not “material”; and

d. any evidence the applicant may have in relation to that question is not “necessary”, let alone “absolutely necessary”.

[24] As emphasized by counsel for the applicant, Mr Marshall’s failure to meet the onus placed on him to sustain the subpoena, by showing that the applicant could give evidence that was material and necessary in Mr Marshall’s criminal trial, was by itself a sufficient basis for the granting of an order quashing that subpoena.

[25] In my view, the necessity of such an order nevertheless was buttressed by regrettable but clear indications that Mr Marshall and his counsel were abusing the coercive power of a subpoena in this particular case.

[26] In particular, I was satisfied that the relevant subpoena obtained and served on the applicant was indeed being used as a “ploy” for unjustified “discommoding or harassment” of the applicant, for the purpose of furthering Mr Marshall’s political objectives. In that regard:

a. This court does not engage in politics, and its decisions are not motivated by political concerns. However, such realities do not mean that the court, in the particular circumstances of this case, should blind itself to evidence of:

i. the obvious political context in which the underlying incident, (in respect of which evidence is being sought by the relevant subpoena), is said to have occurred;

ii. the demonstrable political motivations of the party, (contemporaneous to the underlying incident in which the party admittedly participated), who now seeks to sustain a subpoena compelling that party’s political opponent to attend in court for the purposes of cross-examination relating to that underlying incident; and

iii. overt indications that the desired cross-examination of that political opponent has little or nothing to do with the issues to be addressed by the relevant criminal proceeding.

b. As noted above, the underlying incident giving rise to the criminal proceeding against Mr Marshall, and this proceeding, took place at a campaign event held here in the city of London during a Canadian federal election. It was attended by the applicant as leader of the Liberal Party of Canada, (one of Canada’s political parties competing in that election), which apparently had organized the event in support of its federal election campaign. The applicant was a featured speaker at that campaign event.

c. At the time of that campaign event, Mr Marshall was the Chief Executive Officer of the People’s Party of Canada, (another one of Canada’s political parties competing in the relevant federal election), for the Elgin-Middlesex-London electoral district; a position Mr Marshall apparently held from April 12, 2019, to October 15, 2021, according to the Registered Association Database extract filed as an exhibit by counsel for the applicant. In the circumstances, I think it more than reasonable to infer that Mr Marshall and the applicant effectively were political opponents at the time of the relevant campaign event, and that Mr Marshall did not attend that campaign event, organized by the Liberal Party of Canada, to support that party or the applicant as its leader. Mr Marshall nevertheless did expressly indicate, during his recorded and transcribed police interview, that his attendance at that campaign event definitely was motivated by the applicant’s appearance there. As Mr Marshall put it: “I’m not trying to seek Justin. It was just a spontaneous thing. We just heard he was going to be in town so yeah, we rushed out there.” In the circumstances, I think it also reasonable to infer that Mr Marshall attended the relevant campaign event to demonstrate or protest his political opposition to the applicant and the applicant’s political platform.

d. As noted earlier in these reasons, after Mr Marshall was charged with assaulting the applicant with a weapon, he retained the services of Mr Millar to defend him. Mr Millar then made statements to the media, on August 15, 2022, indicating:

i. that he had “every intention of subpoenaing Justin Trudeau, challenging him on the inconsistencies of his statements and alleging that he was provoking the protesters”; and

ii. that he would “love to cross-examine the Prime Minister”.

e. During the hearing before me, it was suggested by Mr Reidy, another lawyer representing Mr Marshall, that Mr Millar’s statement regarding his fervent desire to cross-examine the applicant was simply a reflection of zealous advocacy for a client; something which is entirely proper. If that particular statement indicating that Mr Millar would “love to cross-examine the Prime Minister” was viewed in isolation, I might be inclined to agree with its suggested characterization. But the statement in question was not made in insolation. To the contrary, it was paired with Mr Millar’s comments indicating that he intended to subpoena the applicant for the purpose of cross-examining the applicant on his statements for purposes which included “alleging that [the applicant] was provoking the protesters”. In my view:

i. As there is nothing in the evidence before me to suggest that the applicant had done anything leading up to the gravel-throwing incident but speak as the leader of his political party at the campaign event, the inescapable inference is that Mr Millar intended to subpoena the applicant for the purpose of cross-examining the applicant on inherently political statements made by the applicant in furtherance of the applicant’s efforts to promote the electoral success of his political party.

ii. Cross-examination on such political statements inherently and inevitably would involve counsel for Mr Marshall challenging the applicant’s political statements, and forcing the applicant to explain and defend such statements under oath or solemn affirmation in the public forum of a court proceeding; an inherently inappropriate use of the court’s process for political purposes. Certainly, it would have no legitimate legal purpose in the manner suggested by Mr Millar when he made his statements to the media. In particular, as Millar knew or ought to have known, (but others unfamiliar with Canadian criminal law may not realize), provocation is no defence to a charge of “assault with a weapon” in this country. Indeed, the law of Canada restricts the defence of provocation to cases involving charges of first or second degree murder. Even then, provocation only acts as a partial defence to such grave charges. Clearly, as a matter of law, provocation had and has nothing whatsoever to do with the “assault with a weapon” charge faced by Mr Marshall. The suggestion that a subpoena would be used to cross-examine the applicant in relation to any form of possible provocation, (a matter entirely irrelevant to the legal issues to be addressed and resolved by Mr Marshall’s criminal trial), therefore was entirely inappropriate.

f. My impression that the relevant subpoena was intended to be used for an inappropriate and collateral political purpose regrettably was reinforced by the manner in which efforts to sustain the subpoena were argued before me. In that regard:

i. I was influenced in part by the somewhat extraordinary extent to which counsel for Mr Marshall were unwilling to acknowledge what seemed to be, in my view, rather obvious defects in their arguments suggesting that the applicant would have material and necessary evidence in relation to the issues to be addressed by Mr Marshall’s criminal trial; i.e., defects which I have endeavoured to explain at length in my reasons set forth above.

ii. However, I was more influenced by arguments made by counsel for Mr Marshall in relation to the matter of parliamentary privilege, to which I will turn in more detail shortly. In particular:

1. As noted above, counsel for Mr Marshall made numerous express concessions in that regard, described in paragraph 18(c)(iii) of these reasons. Again, those concessions included an express acknowledgment and confirmation that, as a Member of Parliament, the applicant “enjoys the privilege of testimonial immunity and therefore cannot be compelled to give testimony while Parliament is in session”, which is currently the status of Parliament at the time of Mr Marshall’s scheduled criminal trial. The concessions made by counsel for Mr Marshall also included an express acknowledgment and confirmation that, if a category of parliamentary privilege is authoritatively established, (as it admittedly was in this case), then “it is up to Parliament, not the courts, to determine whether the exercise of the privilege is necessary or appropriate”, and “the jurisprudence is clear that this court’s analysis can go no further”.

2. Yet the submissions of counsel for Mr Marshall did go further; indeed, much further. Again, it was said, inter alia, that it was “entirely inappropriate” for the applicant to exercise his parliamentary privilege and thereby “evade” enforcement of the issued subpoena; that the applicant had engaged in an “improper purpose” and/or an “abuse of power” in order “to avoid accountability”; and that the applicant’s parliamentary privilege “should be waived”.[^46] As noted above, the factum filed by counsel for Mr Marshall concluded with allegations that the applicant’s statements to the media regarding the gravel-throwing incident improperly and “irrefutably” were reverberations of the applicant’s political campaign platform, intended “to garner sympathetic votes” or “use the incident as a rallying point against his political opponents”; a closing argument which, in my view, strongly suggested the real goal underlying the desire of Mr Marshall and his counsel to cross-examine the applicant.

3. Having regard to the above concessions made by counsel for Mr Marshall, such statements and arguments clearly were not being made for my benefit or consideration. In the circumstances, I felt obliged to agree with counsel for the applicant that they instead were being made for a different audience; i.e., the audience effectively identified in paragraph 21 of the factum filed by counsel for Mr Marshall, wherein it was expressly acknowledged that “only Parliament and the Canadian public can judge the appropriateness” of the applicant’s exercise of his parliamentary privilege. [Emphasis added.]

4. In my view, such clearly and admittedly irrelevant statements, inherently if not overtly political rather than legal in nature, had no proper place in the submissions of counsel in this legal proceeding. However, as noted above, the fact they were made reinforced my view that the true purpose of the relevant subpoena being issued was not the protection of legal interests but the pursuit of political objectives; an abuse of process that needed to be restrained.

[27] As emphasized by counsel for the applicant, those demonstrable abuse of process concerns, in and of themselves, also provided a separate and sufficient basis for the granting of an order quashing the relevant subpoena served on the applicant.

[28] In my view, however, the applicant’s applicable, undeniable, expressly admitted and absolute parliamentary privilege, rendering the applicant immune from being compelled to attend at the criminal trial of Mr Marshall, essentially made the outcome of this application a foregone conclusion. In particular:

a. As confirmed by the evidence filed by the applicant, (including sworn affidavit evidence and material from Parliament’s website which was presented as a sworn exhibit), Parliament is currently in session, and would not only be in session but also sitting on the date of Mr Marshall’s scheduled criminal trial.[^47]

b. As a Member of Parliament, the applicant accordingly was not compelled or compellable to attend as a witness before any court or tribunal in Canada while Parliament is in session, and that included the Ontario Court of Justice scheduled to deal with Mr Marshall’s criminal trial on March 7, 2023.

c. The subpoena obtained by Mr Marshall and his counsel therefore was unenforceable, and needed to be quashed.

[29] To the extent counsel for Mr Marshall made further arguments that might be construed as a suggestion or invitation that I should have proceeded further, (e.g., to review whether the applicant’s exercise of his parliamentary privilege was necessary or appropriate in the current age of “Zoom” hearings, to find that the applicant’s exercise of his parliamentary privilege infringed the rights guaranteed to Mr Marshall by the Charter, and/or to “reconcile” the applicant’s right to parliamentary privilege with Mr Marshall’s Charter rights by modifying and diluting the former), I note and emphasize again that all such suggestions were entirely antithetical to the express indications and acknowledgments I received from counsel for Mr Marshall, in the proceeding before me, conceding that the applicant’s parliamentary privilege, (and corresponding right to refuse court attendance in compliance with the relevant issued subpoena), was authoritatively established, applicable, absolute, and something in respect of which this court’s analysis could “go no further”.

[30] Moreover, regardless of any such acknowledgements or concessions by counsel for Mr Marshall, and as I indicated to counsel during the course of submissions, I considered myself bound by, (and in respectful agreement with), the following comments of our Court of Appeal in Telezone v. The Attorney General of Canada, supra, effectively summarizing the proper analysis to be carried out by courts approaching such issues:

Was there a recognized and necessary category of parliamentary privilege relating to testimonial immunity of members of Parliament in the United Kingdom in 1867? Yes. What was the temporal scope of the privilege? It applied throughout parliamentary sessions and the 40 days before and after each session. Is the privilege so defined necessary to the proper functioning of Parliament today? This is a question for Parliament, not the courts. Once a court has determined that a parliamentary privilege exists and has ascertained its definition or scope, its role ends.

[Emphasis added.]

[31] I nevertheless also note the following, for the sake of completeness.

[32] First, counsel for Mr Marshall brought no cross-application seeking any form of declaratory or other relief based on alleged contravention of the rights guaranteed to him by the Charter. Nor had counsel for Mr Marshall served any appropriate notice of constitutional question formally indicating any desire for a court ruling modifying and curtailing the rights of parliamentary privilege which have not only existed since 1867, but which also are entrenched and protected by provisions of our Constitution and a statute of Parliament. Arguments that Mr Marshall’s Charter rights were being infringed accordingly were not properly before me, and effectively were no more than arguments “in the air”, as it were.

[33] Second, suggestions by counsel for Mr Marshall that the extent of the applicant’s parliamentary privilege should be re-examined and modified having regard to modern developments such as “Zoom” hearing technology, capable of minimizing the time the applicant would be removed from his parliamentary duties, seemed entirely oblivious to the necessary temporal focus, mandated by our Constitution and the Parliament of Canada Act, supra, and emphasized by our Court of Appeal in Telezone Inc. v. Canada (Attorney General), supra, is parliamentary privilege as it existed in the British House of Commons in 1867.

[34] Third, as I indicated during the course of counsel submissions, it seemed to me that counsel’s assertion that the applicant’s rights of parliamentary privilege had to be “reconciled” with Mr Marshall’s Charter rights by modification of the former was based on a fallacious premise; i.e., that one set of the rights or the other necessarily had to be compromised or sacrificed in favour of the other. In particular, if Mr Marshall’s Charter rights were indeed somehow infringed by the exercise of the applicant’s constitutionally protected rights, (which was not a question properly before me for the reasons outlined above, and certainly not something which has been established in any way during or by the proceedings before me), Mr Marshall did not lack a proper method of seeking appropriate declarations and relief in that regard; relief that conceivably could include the criminal charge against him being stayed, (if the court considered such relief to be necessary and appropriate), but also relief that would not dilute or compromise the constitutionally protected rights of the applicant to parliamentary privilege.

[35] Finally, much was said by counsel for Mr Marshall during the proceeding before me about the fundamental importance of “the rule of law”, and the importance of no one being “above the law” regardless of wealth or power.

[36] Those undoubtedly are indisputable and vital principles underlying our legal system here in Canada.

[37] With respect, however, suggestions that recognition and enforcement of the applicant’s rights of parliamentary privilege somehow contravene those principles completely ignores the fundamental reality that “the law” referred to in the above maxims obviously includes our Constitution and the statutes of Parliament, both of which expressly recognize, preserve and protect the rights of parliamentary privilege enjoyed by the applicant and all Members of Parliament.

[38] For the reasons outlined above, reinforced by centuries of authority and precedent, those constitutionally protected rights are not privilege without purpose. To suggest otherwise is fundamentally inaccurate and misleading.

Conclusion

[39] For the reasons outlined above, I made my order granting the extraordinary remedy of certiorari, quashing the subpoena served on the applicant.

Justice I.F. Leach

Date: March 9, 2023

[^1]: A transcript of that police interview was provided to all concerned by Crown counsel shortly before the matter came before me. Although there was no formal objection to admission of that evidence for purposes of the hearing before me, counsel for Mr Marshall did express frustration and concern regarding the timing of the transcript’s production and sharing. However, Crown counsel explained, and there was no dispute, that the underlying audio-video recording reflected in the transcript had been formally disclosed to the accused and his counsel almost a year ago; i.e., on March 21, 2022. Crown counsel also explained that, as a cost control measure, transcripts of such recordings usually are not ordered until shortly before matters proceed to trial; i.e., when the need for such transcripts has been confirmed. In the circumstances, it was my view that the transcript should be received into evidence for purposes of the hearing.

[^2]: See the transcript of the “Police Interview of Shane Marshall” dated September 11, 2021, (“TPI”), at page 4, line 27, to page 5, line 4.

[^3]: See TPI, at pages 5-11, including in particular page 8, lines 14-19.

[^4]: See, in particular: TPI at page 10, lines 10-17; TPI at page 11, lines 29-31; TPI at page 15, line 10, to page 16, line 1; and TPI at page 24, lines 1-19.

[^5]: In admitting and considering such evidence, I was mindful of concerns, expressed by Chief Justice MacDonald of the Prince Edward Island Supreme Court in R. v. Brown, 2001 PESCTD 6, (a case addressing an alleged assault against Prime Minister Chretien), about the need for suitable proof as to the authenticity of evidence of such reports concerning statements made to the media. In this case, however, counsel for the applicant provided such proof through appropriate affidavit evidence.

[^6]: My concerns in that regard stemmed from the failure of counsel for Mr Marshall to introduce such evidence by way of appropriate sworn affidavit evidence or testimony. In particular, counsel for Mr Marshall simply uploaded the two video recordings to the court’s electronic “Caselines” system of document filing, and asked to play them during the hearing; e.g., without any evidence indicating the date, time or context in which they had been recorded. After receiving submissions from counsel, I nevertheless allowed counsel for Mr Marshall to play the two recordings for my consideration for a number of reasons, including the following: i. As effectively noted by Crown counsel, (albeit not in such terms), I am entitled to take judicial notice of the fact that the speaker depicted in the video recordings is obviously the Prime Minister, whose voice is sufficiently recognizable to distinguish his comments from those of other individuals who are speaking even when the sound quality of the recordings is variable. ii. The video-recordings internally contain indications of the context in which they were made. In particular: a. The first recording, (uploaded to Caselines under the label “Trudeau - Does it Matter”), obviously was made on a bus, and shows the applicant standing in the central aisle of the bus while engaged in animated and overlapping comments, questions and answers that frequently interrupt each other as participants keenly discuss something that apparently had just happened; i.e., the throwing of gravel at the applicant. In my view, the recording clearly was made on September 8, 2021, shortly after the underlying incident occurred; i.e., shortly after the applicant was boarding that bus. b. The second recording, (uploaded to Caselines under the label “Trudeau – Gravel”), depicts a more organized environment where the applicant is standing and speaking into a microphone. Comments indicate that he is speaking to journalists, taking questions about the gravel throwing incident, and making comments in response; i.e., a context commonly described in the vernacular as a media “scrum”. One of the questions put to the applicant expressly refers to the incident as having happened “yesterday”; i.e., thereby making it clear that the recording was made on September 9, 2021, albeit apparently in an unidentified location somewhere other than London, as one of the questions posed asks the applicant about what happened as he “left the whistlestop yesterday in London, Ontario”. iii. Counsel for Mr Marshall proceeded under a misapprehension that they would be able to present the recordings on consent; a misapprehension apparently fostered by the fact that counsel for the applicant may not have expressed definite opposition to presentation of the recordings when they were being discussed. Combined with the other considerations noted above, in my view fairness called for the granting of leave to present the recordings notwithstanding the failure to have them introduced through an appropriate affidavit or witness.

[^7]: See R. v. Jobin, supra, at paragraph 33.

[^8]: See R. v. Finkle, [2007] O.J. 3506 (S.C.J.), at paragraph 88; and Dykstra v. Greensword, 2016 ONSC 8211, [2016] O.J. No. 7263 (S.C.J.), at paragraphs 27-28.

[^9]: See R. v. Finkle, supra, at paragraphs 58 and 62; and Dykstra v. Greenwood, supra, at paragraph 45.

[^10]: See Dykstra v. Greensword, supra, at paragraph 45.

[^11]: See R. v. Finkle, supra, at paragraph 35, and Dykstra v. Greensword, supra, at paragraph 45.

[^12]: See Foley et al. v. Gares (1989), 1989 5134 (SK CA), 53 C.C.C. (3d) 82 (Sask.C.A.), at paragraph 64; and Dykstra v. Greensword, supra, at paragraph 46.

[^13]: See Foley et al. v. Gares, supra, at paragraph 64; R. v. Finkle, supra, at paragraph 61; and Dykstra v. Greensword, supra, at paragraphs 54 and 73.

[^14]: See R. v. Elliott (2003), 2003 24447 (ON CA), 181 C.C.C. (3d) 118 (Ont.C.A.), at paragraph 130, and Dykstra v. Greensword, supra, at paragraphs 63-65, 82, 84-85, 87, 90(i), 90(ii) and 90(vi). The basis for accepting counsel statements that a witness is likely to give material evidence stems in part from their status as officers of the court, and Rules of Professional Conduct considerations; rules which, in Ontario, include a “duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity”, as well as the duty of a lawyer, when acting as an advocate, to not needlessly inconvenience a witness. See Dykstra v. Greensword, supra, at paragraph 77.

[^15]: See Dykstra v. Greensword, supra, at paragraph 87. In that regard, I note the prescient caution expressed by Justice Durno in that case, noting that “where the applicant seeks to subpoena a large number of people or persons about whom it cannot readily be determined that they likely have material evidence to give, (such as the Prime Minister), the prudent course would be to require a written application”. [Emphasis added.]

[^16]: See R. v. Finkle, supra, at paragraphs 34 and 60; R. v. Kermani, [2007] O.J. No. 4395 (S.C.J), at paragraph 7; R. v. Coote, [2009] O.J. No. 1599 (S.C.), at paragraph 14(3); and Dykstra v. Greensword, supra, at paragraphs 47 and 90(iv).

[^17]: See R. v. Finkle, supra, at paragraphs 58, 62 and 71, and Dykstra v. Greensword, supra, at paragraphs 48-49 and 90(iii). While not included in the enabling sections of the Criminal Code or in any other forms, Forms 16 (the one used by defence counsel to obtain the relevant subpoena issued in this case), 16.1 and 17 dealing with subpoenas require the issuer to find that “it has been made to appear that you are likely to give material evidence”. That wording originated in the 1886 version of the Criminal Code, when it was accompanied by a requirement for the provision of evidence under oath indicating that the desired witness was likely to give material evidence. The enabling section remained the same until 1953, when the current wording, without reference to “it has been made to appear”, came into effect. That “it has been made to appear” wording nevertheless has remained in the underlying forms, although the oath requirement generally has been removed except for some forms, such as Form 5. See Dykstra v. Greensword, supra, at paragraphs 50-51.

[^18]: See R. v. Finkle, supra, at paragraphs 60 and 68, and Dykstra v. Greensword, supra, at paragraphs 53 and 58.

[^19]: See R. v. Finkle, supra, at paragraph 71, and Dykstra v. Greensword, supra, at paragraph 48.

[^20]: See R. v. Colbourne (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont.C.A.); R. v. Finkle, supra, at paragraph 70; and Dykstra v. Greensword, supra, at paragraph 52.

[^21]: See R. v. Dickie, 1996 8293 (ON SC), [1996] O.J. No. 3239 (S.C.J.), at paragraph 13; R. v. Finkle, supra, at paragraph 66; and Dykstra v. Greensword, supra, at paragraph 55.

[^22]: See s.698(1) of the Criminal Code; R. v. Finkle, supra, at paragraph 70, and Dykstra v. Greensword, supra, at paragraph 53.

[^23]: See R. v. Young, [1999] O.J. No. 2958 (C.A.), at paragraph 7, leave to appeal refused [1999] S.C.C.A. 434.

[^24]: Again, see R. v. Elliott, supra, at paragraph 130, and Dykstra v. Green, supra, at paragraphs 31, 64, 75, 77 and 82.

[^25]: See R. v. Elliott, supra, at paragraph 130; and Dykstra v. Greensword, supra, at paragraph 66.

[^26]: See R. v. Harris, 1994 2986 (ON CA), [1994] O.J. No. 1875 (C.A.), at paragraph 4, and Dykstra v. Greensword, supra, at paragraph 32.

[^27]: See R. v. Finkle, at paragraph 73, and Dykstra v. Greensword, supra, at paragraphs 91-95.

[^28]: See sections 704, 705, 706 and 707 of the Criminal Code, and Dykstra v. Greensword, supra, at paragraph 29.

[^29]: See section 708 of the Criminal Code, and Dykstra v. Greensword, supra, at paragraph 29.

[^30]: See R. v. Gillespie (1996), 1996 18153 (MB KB), 111 Man.R. (2d) 257 (Q.B.), at paragraph 14, and R. v. Brown, supra, at paragraphs 19-20.

[^31]: See R. v. Stupp et al., [1982] O.J. No. 724 (H.C.J.), at paragraphs 38-39, and Baldwin v. Bauer (1980), 1982 1897 (ON SC), 2 C.C.C. (3d) 111 (Ont.H.C.), at paragraphs 26 and 33-35.

[^32]: See R. v. Stupp et al., supra, at paragraph 39, and R. v. Harris, supra, at paragraphs 4 and 7.

[^33]: See R. v. Brown, supra, at paragraph 20.

[^34]: See J.P. Maingot, Q.C., Parliamentary Privilege in Canada, 2^nd ed. (Ottawa: House of Commons and McGill-Queen’s University Press, 1997), at p.12; a definition recognized and accepted by our Court of Appeal in Telezone Inc. v. Canada (Attorney General), 2004 36102 (ON CA), [2004] O.J. No. 5 (C.A.), at paragraph 13.

[^35]: See New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, at p.377; and Telezone Inc. v. Canada (Attorney General), supra, at paragraph 15.

[^36]: See Telezone Inc. v. Canada (Attorney General), supra, at paragraph 18.

[^37]: See Sir John George Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, 4^th ed. by T.B. Flint (Toronto: Canada Law Book Company, 1916), at pp.37-46; and Telezone Inc. v. Canada (Attorney General), supra, at paragraphs 19-20.

[^38]: See Telezone Inc. v. Canada (Attorney General), supra, at paragraphs 25-28, 31 and 33, and the authorities referred to therein; and Mahjoub v. Canada (Minister of Citizenship and Immigration), 2010 FC 1193, 2010 F.C. 1193 (T.D.), at paragraph 15, appeal quashed 2011 FCA 294.

[^39]: See R. v. Gamble (1851), 9 U.C.Q.B. 546; Sir John George Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, supra, at pp.45-46; Erskine May, Parliamentary Practice, 18^th ed. (London: Butterworth & Co. Ltd., 1971); J. Maingot, Q.C., Parliamentary Privilege in Canada, supra; Arthur Beauchesne, Rules & Forms of the House of Commons of Canada, 6^th ed. (Toronto: Butterworths, 1989), at paragraph 24; R. v. Brown, supra, at paragraphs 22-24; Telezone Inc. v. Canada (Attorney General), supra, at paragraphs 29, 31-33, 41 and 45; and Seelster Farms Inc. v. Ontario, 2017 ONSC 4756, at paragraphs 96-97. Indeed, Bourinot notes that the extended history and authorities confirming the well-established privilege of exemption of Members of Parliament from serving as jurors or attending as witnesses includes precedents found in the British House of Commons, (whose privileges as of 1867 are shared with Canadian House of Commons pursuant to the constitutional and statutory provisions outlined above), whereby persons have been punished for serving subpoenas upon Members of Parliament.

[^40]: Section 7 of the Charter provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Subsection 11(d) of the Charter provides that “Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

[^41]: In that regard, counsel for Mr Marshall relied on an isolated passage from then Justice McLachlin’s decision in Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, at paragraph 69.

[^42]: In accepting the need for the court to have regard to that additional consideration, defence counsel expressly made reference, in the counsel statement provided to Justice of the Peace Aleong, to R. v. Stupp, supra, and R. v. Elliott, supra.

[^43]: In saying that, I am mindful that the definition of “victim” in section 2 of the Criminal Code has been amended and expanded in recent years to now mean “a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a the result of the commission or alleged commission of the offence, and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person”. [Emphasis added.] The expanded definition of “victim” imported into the definition of “complainant” therefore is still careful to indicate that the term does not necessarily refer to someone who definitely has been impacted by the commission of an offence. What the expanded definition does not do is make any reference to someone who has “complained” of an alleged offence, and/or who has made a “complaint” of any kind.

[^44]: See David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p.790.

[^45]: Ibid., at p.599, in the context of how juries routinely are instructed on the essential elements of the “assault” component of a sexual assault.

[^46]: During the course of submissions, it was suggested somewhat randomly, as a fall back submission, that the applicant had implicitly waived his parliamentary privileges in the circumstances of this case. However, I saw nothing in the evidence before me to suggest any such waiver.

[^47]: As noted above, it is not necessary for Parliament to be sitting for parliamentary privileges of its Members, (including immunity from trial attendance mandated by any subpoena), to be engaged; Parliament merely being in session on the date of a trial to which a subpoena refers will suffice, and that clearly was the status of Parliament in the situation here. (On October 27, 2021, a proclamation was made summoning the 44^th Parliament of Canada to meet on November 22, 2021, for the start of its first session. That 44^th Parliament of Canada currently is still in its first session.) The fact that Parliament nevertheless also was scheduled to be sitting on March 7, 2023, (i.e., the scheduled date of Mr Marshall’s criminal trial, and the date on which the relevant subpoena commanded the applicant to appear at that trial to give evidence), underscores the rationale for parliamentary privilege permitting Parliament’s Members, (including the applicant), to refuse court attendance while Parliament is in session. Again, under our constitution, Parliament has the paramount right to the attendance and service of its Members, to ensure the separate but equal legislative branch of our parliamentary democracy is able to carry out its necessary and important functions.