Court File and Parties

COURT FILE NO.: 21-17551 DATE: 2023/07/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – MARK CUNNINGHAM AND ISABELLE CUNNINGHAM Defendants

Counsel: David Rodgers, for the Crown Self-Represented

HEARD: June 20, 2023

RULINGS ON APPLICATION TO QUASH SUBPOENAS AND APPLICATION TO RELITIGATE CHARTER RULINGS

JUSTICE MARC R. LABROSSE

Overview

[1] The Defendants are jointly charged with two offences: attempting to obstruct justice, contrary to s. 139(2) of the Criminal Code, R.S.C. 1985, c. C-46, and uttering a forged document, contrary to s. 368(1) of the Criminal Code. They are self-represented.

[2] In August 2022, they failed to make an election and the court elected on their behalf a trial by judge and jury. Pre-trial applications were argued on December 13, 16 and 20, 2022. The Defendants had brought applications pursuant to ss. 9, 10(a), 10(c), 11(d), 11(h) and 12 of the Canadian Charter of Rights and Freedoms. Each application was dismissed by Justice Gomery on December 20, 2022, with reasons to follow. Those written reasons were released on January 3, 2023.

[3] A nine-day jury trial was scheduled to proceed in front of Justice Gomery from January 3 to 13, 2023. The jury trial began, and the Crown called its case in chief, finishing on the morning of January 5, 2023. The Defendants’ failure to attend court in person, as a result of claimed illness, created delays in the trial. The delays continued and ultimately, Justice Gomery declared a mistrial on January 30, 2023.

[4] New trial dates have been set for September 5, 2023. The Defendants have indicated that they wish to relitigate the pre-trial applications and bring an application pursuant to s. 11(b) of the Charter. Thus, they have served new Charter applications pursuant to ss. 9, 10(a), 10(c), 11(b) and 11(h) of the Charter. They have not renewed their applications in respect of ss. 11(d) and 12 of the Charter.

[5] As part of the new Charter applications, the Defendants have subpoenaed a provincial offences prosecutor and an assistant crown attorney. The Crown moved to quash the subpoenas.

[6] Rulings are now required in respect of the Crown’s motion to quash the subpoenas and the Defendants request to relitigate the Charter applications pursuant to s. 653.1 of the Criminal Code.

Background

[7] The current charges arise from proceedings before the Landlord and Tenant Board, dating back to 2017. During that proceeding the Landlord applied to terminate these Defendants’ tenancy for failure to pay rent over several months. In March 2019, the Board dismissed the application after the Defendants produced Interac records showing monthly payments to the Landlord.

[8] In June 2019, the Board initiated a review of its order based on new evidence. A further hearing was convened and the Defendants failed to attend. The Board heard evidence from the Ottawa Police that the Interac transfer records filed by the Defendants had been falsified and they were now facing charges in the Ontario Court of Justice. Evidence was provided suggesting that no money transfers had been made. The Board then canceled its previous order and replaced it with an order terminating the tenancy and ordering the Defendants to pay the Landlord outstanding rent and costs. The Defendants were also ordered to give vacant possession of the unit.

[9] The Defendants were charged with furnishing false or misleading information, contrary to s. 234 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. This matter preceded to Provincial Offences Court. On the date of trial, October 3, 2022, the Landlord and her lawyer did not attend despite being subpoenaed. The Crown was required to request a stay of proceedings.

[10] Prior to the trial in Provincial Offences Court, the Defendants were also charged with three offences under the Criminal Code: fraud, laundering of proceeds of crime, and possession of proceeds of crime. The Crown dropped these charges in September 2021 and proceeded on a new indictment listing the two charges now set for trial: uttering forgery and obstruction of justice.

[11] On December 13, 15 and 20, 2022, Justice Gomery heard six pre-trial applications:

a. An application to stay the prosecution on the basis that the Defendants had already been tried for the same acts that formed the subject matter of the charges, contrary to s. 11(h) of the Charter;

b. A declaration that the Defendants were subject to grossly disproportionate state actions amounting to cruel and unusual treatment, contrary to s. 12 of the Charter;

c. An application to stay the prosecution on the basis that the defendant Mark Cunningham was arbitrarily detained on January 25, 2021, contrary to s. 9 of the Charter;

d. A stay of the proceeding on the basis that the defendant Mr. Cunningham was not informed of the reasons for his arrest on January 25, 2021, contrary to s. 10(a) of the Charter;

e. A declaration that Mr. Cunningham was detained without justification on January 25, 2021, contrary to section 10(c) of the Charter;

f. A postponement of the Cunninghams’ trial in early January 2023, on the basis that an unbiased jury cannot be empaneled on the jury role currently in use, contrary to section 11(d) of the Charter.

[12] As previously stated, on December 20, 2022, these applications were dismissed with reasons to follow. On January 3, 2023, Justice Gomery issued written reasons dismissing all six applications. The trial began on January 3, 2023 and was stayed on January 30, 2023. New trial dates have now been set for September 2023.

[13] On June 1, 2023, the Defendants filed five new Charter applications pursuant to ss. 9, 10(a), 10(c), 11(b), and 11(h) of the Charter. In order to proceed with these applications, relief under s. 653.1 of the Criminal Code is required.

[14] As part of the 11(b) Charter Application, the Defendants issued subpoenas to Provincial Prosecutor Vinicius Oliveira and Assistant Crown Attorney Emilie Farrell. The Crown moves to quash those summonses.

[15] At the end of these motions, the court requested that the parties file additional submissions to provide references where Officer Nizman’s unavailability was discussed with Justice Gomery. The Crown provided a written submission titled “Crown Follow-Up on Section 653.1 Application” which stated that Officer Nizman’s unavailability was not discussed with Justice Gomery. However, in that document the Crown provided various references in the transcripts to the issue of availability of witnesses.

[16] The Defendants provided a lengthy document titled “Defence Follow-Up Submission to Section 653.1 Application”. In that document, the Defendants provided various excerpts from the transcripts which reference witnesses and various exchanges between the Defendants and Justice Gomery during submissions. The Defendants also took the opportunity to supplement their argument on various points and this was certainly not the intent of the court’s request for further information.

[17] These further submissions have all been considered in arriving at these decisions.

[18] Also, at the end of these motions, I asked the Defendants to provide a copy of the new videos that they allege were not provided to Justice Gomery because they were on another device. I sought these videos because it is claimed that they represent new evidence. The new evidence is described as follows: “The different recordings were taken back-to-back at the same incident, so they are likely to bare a close resemblance to each other. They are however slightly different and highlight key police interactions that HH Justice Gomery missed taking into account”.

[19] In her reasons, Justice Gomery referenced three videos which were viewed during the original pre-trial applications. Some of the content of those videos is described in her decision. The exhibit list only lists that the videos were to be provided by Mr. Cunningham. Neither the Crown nor the Defendants could find the videos and they could not be located in the exhibits from the pre-trial applications. Mr. Cunningham advised the Court that the videos were in his Google account but that he could not access them without a cell phone which had since been seized by the Ottawa Police in another matter.

[20] The Ottawa Police then attended with the cell phone and the Google account was accessed, however, Mr. Cunningham could only produce two videos as opposed to the three videos referenced in Justice Gomery’s decision. There was discussion that two of the videos may have been merged given that one is shorter and the other is much longer. Regardless, Mr. Cunningham could not provide a third video and none was found in evidence.

[21] A review of the new video evidence filed by the Defendants shows much of the same type of video as the two videos which are said to have been considered by Justice Gomery. The new videos have been edited into the form of a Tik Tok video. The videos have also been combined into one video which is 7:02 minutes/seconds long. The only difference is that the new 7:02 video shows the moment when officers moved forward and arrested Mr. Cunningham by force. The new portions last a few seconds and do not show the specific details about the way that Mr. Cunningham was arrested.

Motion to Quash Subpoenas

[22] At the outset of the motion to quash, the Crown agreed that in terms of the Provincial Offences Prosecution and this current prosecution in the Superior Court, the same body of evidence applies to both cases. This confirmation by the Crown seemed to alleviate many of the concerns raised by the Defendants in terms of the need to receive evidence from Mr. Oliveira and Ms. Farrell to the extent where the Defendants seemed to agree that their presence may no longer be required.

[23] The following legal principles were presented by the Crown:

a. 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: see Criminal Code, s. 698(1).

b. When a party applies to quash a subpoena, the onus is on the party who obtained it to demonstrate that the subject of the subpoena has relevant, material and admissible evidence to give in court: see R. v. Shaparov, [2022] O.J. No. 672 (S.C.), at para. 17.

c. It is not sufficient to merely show the witness “may have” evidence material to the case. The obtaining party must demonstrate that the witness “would probably have evidence material to the issues raised”. The mere possibility that the witness might have material evidence is not enough: see Shaparov, at para. 18.

d. When prosecuting counsel is the subject of the subpoena, the party seeking the subpoena must go further. In addition to showing relevance, it must establish that counsel’s evidence is also necessary. Opposing counsel in a case can only be forced to testify in “exceptional circumstances”. This “stringent test” applies both to Crown and defence counsel if they seek to call each other as a witness: see Shaparov, at para. 19.

e. Necessity in this context will involve considerations such as the importance of the issue for which the testimony is sought, the degree of controversy surrounding the issue, the availability of other witnesses to give the evidence of other means by which it may be accomplished (such as the filing of an agreed statement of fact), the potential disruption of the trial process and the overall integrity of the administration of justice: see R. v. 1504413 Ontario Ltd, 2008 ONCA 253, 90 O.R. (3d) 122, at para. 17.

[24] Dealing first with Ms. Farrell, the Defendants claimed that her presence was required because she attended as the Crown on a judicial pretrial and received comments from the judicial pretrial judge in respect of the merits of some of the charges. At the same time, she is not the opposing Crown in this proceeding and as such, the standard of necessity need not be met.

[25] For reasons given orally, the testimony of Ms. Farrell is not relevant to the s. 11(b) application. If the Crown chose to proceed on all of the counts that were before the court at that judicial pretrial, despite the comments received from the judge, that forms part of prosecutorial discretion. The reasons why the Crown pursued those charges until they were eventually stayed, are not relevant to the determination of the Defendants’ s. 11(b) application. If the ongoing prosecution of those charges resulted in time spent which is relevant to the s. 11(b) analysis, that time is not deducted. That time counts when considering the overall delay applicable in the s. 11(b) analysis, subject to other periods which may properly be deducted.

[26] When considering the applicable standard on a motion to quash, the testimony of Ms. Farrell is not relevant to the s. 11(b) application. Regardless, the Defendants have failed to demonstrate how the decision-making within the Crown’s office as to why it chose to proceed with a prosecution would be material to or even admissible in the context of the s. 11(b) application. I find that Ms. Farrell's testimony is not relevant and her subpoena is hereby quashed.

[27] In respect of Mr. Oliveira, he is also not opposing counsel in this matter and as such necessity need not be established. The Crown’s recognition that we are dealing with the same factual basis for both the provincial offences and the Superior Court charges seemed to address this issue in full for the Defendants. In addition, the overlap in the factual basis relating to the two prosecutions was accepted by Justice Gomery when the motions were argued. Mr. Oliveira’s, comments about why the charges were stayed in provincial offences court is also clear on the record. Further testimony from him on this issue is certainly not relevant or material to the 11(b) Application. The Defendants have not established any basis upon which his evidence is relevant.

[28] Accordingly, Mr. Oliveira’s subpoena is hereby quashed.

Application Under S. 653.1

[29] Section 653.1 of the Criminal Code creates a presumptive rule that, where mistrials occur, rulings related to disclosure, the admissibility of evidence or the Charter that were made in the first trial will be binding on the parties in any new trial.

[30] The presumption created by s. 653.1 is rebuttable. To rebut the presumption, the party seeking to relitigate the subject matter of a prior ruling must satisfy the court, on a balance of probabilities, that it would not be in the interests of justice to bind the parties to the previous ruling: see R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 52.

[31] The Court of Appeal for Ontario considered the meaning of the “interests of justice” standard in Victoria. At para. 55, the Court identified the following circumstances as being relevant to the analysis:

a. Whether any new evidence will be tendered on the proposed rehearing;

b. Whether any new arguments will be advanced on the proposed rehearing and the apparent merit, if any, of those arguments;

c. The interests of the parties, including any articulable prejudice fostered or perpetuated by the inability to relitigate any issue previously decided;

d. The public interest in the timely and efficient conduct of criminal trial proceedings and avoidance of unnecessary and duplicative proceedings;

e. Any changes in the legal principles governing the ruling on which relitigation is proposed;

f. The nature of the evidentiary record on the basis of which the prior ruling was made, as for example, viva voce testimony; agreed statement of facts; transcripts of testimony given elsewhere and any differences in the record proposed for relitigation;

g. The nature of the issue(s) involved in the prior ruling and proposed relitigation;

h. The possibility of inconsistent rulings; and,

i. Any other circumstances relating to the balance of the subsequent trial proceedings that may have an impact on the continued applicability of the prior rulings.

[32] The most important issue raised by the parties is the potential change to the evidentiary record. The Defendants focus on the fact that the officers who played a role in the arrest of Mark Cunningham will now testify if the Charter applications can be re-heard. The Defendants argue that this will be significantly different than the previous applications when Justice Gomery did not attribute any weight to the Investigative Actions that were before her. The Defendants argue that they will now have the benefit of the officers’ evidence.

[33] On this point, the Defendants are incorrect in stating that Justice Gomery did not attribute any weight to the Investigative Actions because the officers did not testify. To the contrary, Justice Gomery accepted the Investigative Actions of the officers and confirmed the agreement between the Crown and the Defendants that those Investigative Actions were admitted into evidence for the truth of their contents. Furthermore, Justice Gomery clearly referred to them in her rulings on the applications.

[34] The Defendants also rely on the Crown’s evidence in chief at the trial, principally in support of their application under s. 11(h) of the Charter. They say the trial evidence will demonstrate that the evidence in provincial offences court was the same as the evidence at trial in the Superior Court. However, the trial evidence does not advance the s. 11(h) analysis because Justice Gomery had already accepted that it was essentially the same body of evidence and rejected the suggestion that double jeopardy exists because a person was previously charged with a similar or same offence. Justice Gomery dealt with this issue in her reasons and rejected the Defendants’ argument. Justice Gomery also dealt with the Defendants’ argument that the staying of the charges in provincial offences court was the equivalent of an acquittal.

[35] Finally, the Defendants argue that the Charter applications must be re-heard because they did not have the opportunity to cross-examine the officers during the applications heard by Justice Gomery. This is incorrect as the transcript from that proceeding clearly demonstrates that they had the opportunity to cross-examine and chose not to.

[36] The Defendants also contend that Officer Nizman was not available to be cross-examined at the Charter applications. The record does not indicate that any request was made to cross-examine him nor that any objection was made to proceeding in his absence. Furthermore, the Investigative Action of Officer Nizman was filed for the truth of its contents and there is no indication that his testimony would be any different if he were called to testify in person. The Defendants continue to refer to the inconsistency in the statements made by Officers Tessier and Nizman and how they require them for cross-examination to explore this issue. However, Justice Gomery dealt with this issue at para. 65 of her reasons and there is no indication that the trial evidence revealed any issue that must be revisited.

[37] I conclude that the evidence from the Charter applications and the Crown’s trial evidence did not reveal any significant inconsistencies that would warrant a re-hearing of the Charter applications.

[38] Returning now to the criteria set out in Victoria to consider the interests of justice, I provide the following observations:

a. The Defendants have not persuaded me that there will be a difference in the evidence that was put before Justice Gomery. While there is new evidence from the Crown’s trial evidence in chief, there was no suggestion that the evidence was any different from the evidence in the Charter applications. The Defendants argued that there was also a new video of Mark Cunningham’s arrest which provides new evidence, but they have not pointed out any relevant new evidence that warrants a re-hearing. I have reviewed the new video put forward by the Defendants and it does not present anything new which could have an impact on the Charter applications and particularly on the moment when Mr. Cunningham was removed from his vehicle and arrested.

b. The Defendants have not put forward any new arguments from those summarized in Justice Gomery’s decision and they have not proved any error in fact or in law or that her decision is clearly wrong.

c. The Defendants have not articulated any real prejudice if the Charter applications are not relitigated. Their only prejudice is not having the opportunity to re-argue the same before a different judge.

d. No real public interest is at stake here because there is time to hear these applications before the commencement of trial in September 2023, if required.

e. No party identified any change in the legal principles.

f. As to the nature of the evidentiary record, the Defendants now propose to cross-examine the police witnesses and they wish to present the evidence from the Crown’s case in chief at the January 2023 trial. However, the change in the nature of the evidence only arises as a result of the Defendants’ failure to avail themselves of the right to cross-examine during the applications heard by Justice Gomery. This was a tactical decision and cannot be determinative of the issue. Furthermore, the evidence of the trial is now available but there is no evidence before me that the evidence from the trial will provide any significantly new evidence in the context of these Charter applications. I was directed to no new evidence that would warrant relitigating these applications.

g. There is obvious risk of inconsistent rulings based on a number of clear findings made by Justice Gomery. There is no claim that Justice Gomery’s decisions were clearly wrong. The Defendants simply want to have another opportunity to argue the same issues.

[39] The various factors set out in Victoria clearly favour maintenance of Justice Gomery’s January 3, 2023 rulings on the Charter applications. The Defendants have failed to prove that it is in the interests of justice to relitigate those issues. To the contrary, the interests of justice clearly favor maintaining those decisions and allowing the case to proceed to trial, subject to the s. 11(b) Charter application.

[40] Finally, Mark Cunningham has brought an application under s.10(c) of the Charter but did not make mention of it in any detail at this motion. That application does not suggest that Mr. Cunningham was prevented from having his detention reviewed by way of habeas corpus. There is no evidence that he tried to bring such an application. In fact, he was never detained on these charges. Accordingly, that application is summarily dismissed as not having been pursued with a right to be renewed.

[41] The Defendants request pursuant to s. 653.1 of the Criminal Code is denied.

Conclusion

[42] For the reasons stated above, the subpoenas of Ms. Farrell and Mr. Oliveira are quashed. The Defendants’ request under s. 653.1 is denied. The matter will now proceed to the Defendants’ application pursuant to s. 11(b) of the Charter, which has been argued and that decision is pending.

JUSTICE MARC R. LABROSSE Released: July 24, 2023