COURT FILE NO.: 24-11400125 DATE: 2024/10/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Althea Reyes Applicant

Robert Thomson for the Crown Jeff Langevin for the Applicant

HEARD: October 15, 2024

RULING ON APPLICATION FOR SUMMARY DISMISSAL OF APPLICATION FOR CERTIORARI IN AID OF PROHIBITION

ANNE London-weinstein J.

[1] The Applicant Althea Reyes is charged with dangerous driving and other offences alleged to have occurred on January 8, 2023.

[2] The Applicant has filed two applications for certiorari and an order of prohibition. The first was filed by Ms. Reyes herself on October 1, 2024. The second was filed by Mr. Langevin on October 9, 2024, after he was retained to act as counsel for Ms. Reyes on the application.

[3] The application for certiorari arises from a trial before Minard J., in the Ontario Court of Justice. The Applicant argues that a failure to grant an adjournment of sufficient length to review new disclosure resulted in a breach of natural justice. The Applicant also argues that when the Crown provided the trial judge with a conditional sentence order which made the judge aware of her prior criminal convictions, irreparable, continuing prejudice ensued.

[4] A brief review of the history of this matter is required to provide context to these claims. I am also mindful that the trial before Minard J., is scheduled to continue tomorrow and that the parties and the court may benefit from receipt of these reasons for the oral ruling I gave earlier today summarily dismissing the application for certiorari in aid of prohibition.

History of the Proceeding:

[5] The trial began on January 29th, and 30th 2024. There were issues related to disclosure which required that judicial pre-trials be held.

[6] The Applicant had requested disclosure on February 9, 2024 of: the radio transmissions between police on the date of the incident, the affidavit sworn for the search warrant for the blue phone seized by Cst. Genevieve Bolduc, the executed search warrant for the blue phone seized by Cst. Bolduc and the driver’s licence found in the vehicle involved in the accident.

[7] In May of 2024 the Applicant emailed the Crown, not Mr. Thomson, and requested the disclosure. The disclosure was not provided at that time. In May of 2024, the Applicant brought a Charter application for delay, non-disclosure and a stay based on violation of her right to a trial within a reasonable period of time pursuant to s. 11(b) of the Charter.

[8] The Charter application was provided to the trial co-ordinator, who provided it to the trial judge. The trial judge dismissed the application.

[9] In the May 22, 2024 proceeding, the Crown indicated that the notes of Officer Harrison had been provided, but Ms. Reyes had not had an opportunity to listen to the audio recording of a radio transmission which was an hour and a half in length, but contained about 20 minutes of relevant information.

[10] The Crown indicated it would assist Ms. Reyes in using the tape to cross-examine the witnesses.

[11] Ms. Reyes indicated that she had discharged her counsel, Mr. Baum, but she wished to have Mr. Langevin listen to the recording with her.

[12] The trial judge indicated that he recognized she should not be prejudiced but that he had an obligation to move the trial forward and he found the possibility that there may be something of relevance to the defence on the tape to be remote based on evidence he had heard at that point.

[13] The Applicant was given an opportunity to listen to the radio transmission. She indicated that Mr. Langevin had attended and listened to it at least in part. The Applicant indicated that the tape gave rise to other potential Charter motions. She requested a further adjournment to properly prepare her cross-examination of Officer Harrison and her overall trial strategy. The Crown disagreed with the Applicant’s characterization of the disclosed recording, or that it gave rise to other Charter issues.

[14] The trial judge noted that the disclosure of the audio recording was not made in a timely fashion, but also said that this was not entirely the issue. The trial judge noted that Mr. Baum was initially retained as trial counsel, prior to the first trial date in September. He remained as counsel until trial commenced in January.

[15] The trial judge found that the likelihood of these transmission recordings assisting the accused in making full answer and defence was quite remote. The court also noted that Mr. Langevin was prepared to act as trial counsel for the balance of the trial when court commenced this matter on Tuesday of that week. The trial judge found that the Applicant did not avail herself of Mr. Langevin’s services at that time, knowing that this outstanding issue remained and that she still did not have the transmission recordings, later asserting that she was overwhelmed by the receipt of the late disclosure and the lack of time to properly utilize the disclosure. The court made a finding that this was a “rather disingenuous” submission by the Applicant and the court afforded it little weight.

[16] The trial judge indicated that the court will have to determine two simple issues: who was operating the motor vehicle and secondly what was the nature of the operation of the motor vehicle. The trial judge noted that the Applicant now had access to the recordings, and they could be used to cross-examine the balance of the Crown witnesses and that the Crown had indicated as an officer of the court that she would assist in terms of playing any portion that would have to be played to cross-examine witnesses. The trial judge noted there is a significant societal interest in having the trial reach its conclusion on the merits and on an impartial and fair basis. The trial judge noted that the accused is entitled to have a fair trial and to be given every reasonable opportunity to make full answer and defence on matters that are relevant to the charges.

[17] The court noted the accused is entitled to a fair trial, not a perfect one. As a result, the trial judge granted a short adjournment of the afternoon to allow the Applicant to review the radio transmission.

[18] The trial judge was of the view that any further time given to the accused to hear again the salient portions of videotape (sic), may well lead to more applications and more difficulties. I do not read the trial judge’s comments as suggesting that he had concluded mid-trial, that litigation of further Charter issues arising from late disclosure would be precluded from consideration by the court without any knowledge of the nature, or merit of potential future claims by the defence. No applications or motions had been put before the court at that point. Rather, I interpret the trial judge’s reasons as expressing concerns over the delays in the trial, and his view that a short adjournment was all that was required in the circumstances in order for Ms. Reyes to review the newly disclosed material.

[19] If the trial judge had summarily foreclosed any consideration of future applications arising from new disclosure, in the absence of any information regarding the merit of the application, this could give rise to a loss of jurisdiction arising from a deprivation of natural justice. The failure to allow an interested party an opportunity to be heard constitutes a denial of natural justice and results in a loss of jurisdiction: Forsythe v. R., [1980] 2 S.C.R. 268, 53 C.C.C. (2d) 225 at pp 270-73 S.C.R. pp 228-29 C.C.C. See also: R. v. Toronto Star Newspapers Ltd., 67 O.R. (3d) 577 (C.A.), at para 16.

[20] I wish to be clear that it is not a loss of jurisdiction to refuse to hear a motion which has no merit and is manifestly frivolous. However, to summarily refuse to hear a potential application arising from newly disclosed evidence in the absence of any information relating to the merits of the application could constitute a denial of natural justice. However, that is not what happened in this case.

[21] The trial judge was originally going to order the trial to resume at 2:15 with the cross-examination of Officer Harrison. However, he instead granted the Applicant the afternoon to review the recording in the presence of the Crown to prepare her cross-examination. The trial was adjourned.

[22] I have no evidence before me as to the content of the radio transmission, or its relevance to the proceedings. I have no evidence of the lines of cross-examination pursued by Ms. Reyes in her cross-examination of Officer Harrison. While the burden rests on the crown seeking summary dismissal, it is also incumbent on the respondent to the summary dismissal motion to ensure that the material required to explain the relevant context of the claims is before the court. While the overall burden rests on the party seeking summary dismissal, the applicant, who has the knowledge of the remedy they seek, should set out with sufficient detail, the circumstances which support the remedy sought. Haevischer, para 97.

[23] A summary of the radio transmission and its relevance to the trial would have been helpful to the court, along with a summary of the cross-examination which Ms. Reyes pursued with Officer Harrison.

[24] Because the trial judge ordered the trial Crown to produce the radio transmission mid-trial, Ms. Reyes, in oral argument, said that she was deprived of the opportunity to use the radio transmission to cross-examine officers who had already testified before the radio transmission was disclosed.

Legal Analysis:

[25] Errors which do not amount to an error of jurisdiction do not give rise to the remedy of certiorari in aid of prohibition. R. v. Awashish, 2018 SCC 45 at paras 10-11. It is only certain narrowly circumscribed circumstances which can give rise to extraordinary remedies mid-trial. The policy rationale for this is to avoid needlessly bifurcating trials where the appropriate remedy is an appeal if a conviction results. Courts of superior jurisdiction should not be intruding on the trial management of lower courts absent a compelling reason. The reason must arise from an error of jurisdiction, as opposed to a mere alleged error by the lower court.

[26] The exercise of discretion as to how long an adjournment is required to review new disclosure is squarely within the jurisdiction of the trial judge. The trial judge has the best view of how the evidence has unfolded, what the issues in the case are, and the conduct of the parties. The fact that another trial court may have reached a different conclusion does not constitute an error of jurisdiction.

[27] A trial judge has jurisdiction to control its process. This includes the exercise of discretion as to whether an adjournment should be granted and the length of that adjournment.

[28] The Applicant argues that the late disclosure has also deprived her of the ability to cross-examine other police witnesses who have already testified on the contents of the radio transmission, which was only disclosed mid-trial.

[29] The trial judge has the discretion to permit those officers to be recalled, and for Officer Harrison to be recalled if it is established to the trial court’s satisfaction that this is a necessary step in order to preserve trial fairness given the late disclosure in this case. This step has not yet been taken by the Applicant. Whether to permit those witnesses to be recalled is a matter within the discretion of the trial judge, who is in the best position to make that assessment.

[30] The Applicant also argues that she was irreparably prejudiced when the Crown showed the trial judge a CSO order relating to the Applicant’s prior convictions for fraud. In oral argument, the Applicant argued that she was also arrested mid-trial. I have no further information as to what the circumstances were relating to her arrest.

[31] If the Applicant is of the view that the conduct of the Crown in this case rises to the level such that it could ground an application for an abuse of process, that application is best brought before the trial judge, who, as I indicated, has a far better sense of all that has transpired in this trial. It is also open to the Applicant to seek a mistrial before the trial judge.

[32] I am aware that the Crown did provide the trial judge with a copy of the CSO. On July 2, 2024, the Applicant had renewed her request for disclosure of items she had previously requested, including a driver’s licence found in the vehicle. The trial Crown, not Mr. Thomson, indicated that the driver’s license was too distorted to be reproduced. The Applicant then requested that the officer be brought to court and questioned about the disclosure, specifically the licence. The Crown indicated that the officer had a photo of the licence and could provide it. However, the Crown expressed concern regarding disclosing the document directly to the Applicant.

[33] The trial Crown provided the trial judge with a copy of the Applicant’s conditional sentence order and her attached criminal record over the repeated objections of the Applicant. The Applicant did not formally request a mistrial, but she did indicate that this action by the Crown could potentially warrant a mistrial. The objections of the Applicant were overruled by the trial judge.

[34] The trial Crown indicated that on the last occasion, “we had provided a copy of the conditional sentence order that Ms. Reyes was subject to and there’s a concern regarding…”

[35] Ms. Reyes then asserted that she was not sure if the Crown was trying to deliberately cause a mistrial. She pointed out that this manner of proceeding was highly prejudicial and reiterated her belief that the Crown was attempting to provoke a mistrial.

[36] Condition 10 of the CSO, which the trial judge had seen on the last occasion, had a condition that Ms. Reyes not have contact with several individuals, including one person named on the driver’s licence sought in disclosure.

[37] The trial Crown indicated that a condition of the conditional sentence order prohibited the Applicant from having in her possession any permits, licences, identification documents, legal documents or financial documents that are in someone else’s name.

[38] The Crown pointed out that she was not introducing the evidence to prove that the Applicant was in breach of the terms of the conditional sentence order, but rather to ensure that the identifying aspects of that document such as the address, could be redacted.

[39] The court pointed out that the Applicant was not subject to the conditional sentence order at the time of the index offence.

[40] Ms. Reyes indicated that the material could have been disclosed earlier and the identifying information redacted. The court ordered the Crown to redact the address, and date of birth of the person whose licence was allegedly found in the Applicant’s car.

[41] Unfortunately, the transcript which indicated why the CSO was initially produced to the trial judge was not provided to the court. Mr. Langevin did not know why the CSO had been shown to the judge on the earlier occasion in May. Ms. Reyes indicated it was done deliberately to create prejudice and undermine her fair trial rights. However, in the absence of a transcript which would provide some context as to how the CSO was initially reviewed by the trial judge, I make no finding as to the Crown’s reason for producing the document on the limited record before me.

[42] It is trite law that a trial judge may disabuse himself of inadmissible discreditable evidence. The trial judge, having viewed material that is objectionable and not admissible absent a discreditable conduct application is capable of disregarding that evidence from consideration on the trial proper.

[43] Criminal appeals are statutory in nature with few exceptions. Awashish, 2018 SCC 45, para 2 & 10.

[44] There are statutory exceptions to the rule against interlocutory appeals in criminal law; and the extraordinary remedies, notably certiorari, provide relief in narrowly circumscribed circumstances. The general rule is that criminal trials not be fragmented by interlocutory proceedings which assume a life of their own. Awashish at para 10.

[45] It is only errors of jurisdiction which give rise to prerogative writs. Each writ has a unique but interrelated foundation related to the proper exercise of jurisdiction: prohibition prevents a justice from embarking on a course of conduct for which the justice lacks jurisdiction; mandamus direct a justice to discharge his or her jurisdictional obligations and certiorari overturns a decision made in excess of jurisdiction. R. v. M.P.S., 2013 BCSC 525 at paras 10-19; affidavit: 2014 BCCA 338; R. v. Awashish, 2018 SCC 45 at para 20.

[46] A jurisdictional error is one which arises from the authority to determine an issue, not the nature or correctness of the determination made. R. v. Vasarhelyi, 2011 ONCA 397 para 52.

[47] Prohibition is a discretionary remedy and, as with other prerogative remedies, should be refused where an alternative remedy such as an appeal exists or where the matter may be better dealt with within the course of trial. R. v. M.P.S., 2013 BCSC 525 at para 16; Aff’d 2014 BCCA 338.

[48] The errors alleged in this case are not jurisdictional in nature. It is only if the trial judge foreclosed any further applications arising from fresh disclosure without any consideration of the merits of the application that it could be argued that jurisdiction has been lost.

[49] The Applicant provided the court with the case of R. v. Patron, 2024 SKQB 150 where the Applicant sought a writ of prohibition regarding a transfer for a hearing. The case was proffered to support the proposition that procedural fairness must be maintained and that the accused must be able to access materials for their defence. In this case, the issue is that the Applicant maintains that the adjournment she was granted was of insufficient length to permit her to make full answer and defence. The alleged error in this case is not one of jurisdiction.

[50] The Applicant also provided the court with Humenjuk v. Ontario, 2021 ONSC 1857. The case was submitted in aid of the argument that prohibition is a means of prohibiting an inferior court from usurping jurisdiction that it does not possess, or from proceeding in a manner that violates fundamental principles of natural justice. The Applicant argues that the trial judge’s actions, including the denial of a longer adjournment to review fresh disclosure and the review of prejudicial evidence, illustrate a failure to adhere to these principles of natural justice. The Applicant argues that the Respondent has compromised the integrity of the trial, creating a need for a writ of prohibition to prevent further ongoing violations of the Applicant’s rights. I respectfully disagree.

[51] In Humenjuk the Crown conceded that the preliminary hearing judge committed jurisdictional error in circumstances that are entirely distinguishable from the case at bar. There is no such concession in this case. I have already explained why I found the trial judge’s comments regarding avoiding further difficulties or additional applications did not amount to a loss of jurisdiction within the context in which those comments were made and given that the afternoon was granted as to Ms. Reyes to review the audiotape. In drawing that conclusion, I have assumed that the comments were made by the trial judge and have not engaged in even a limited weighing of the evidence. The crux of the matter is that an adjournment was granted and there is no record before me that the trial judge refused to hear a potential Charter argument arising from the new disclosure.

[52] The Applicant has remedies which can be sought before the trial judge. The trial judge can permit the officers to be recalled and cross-examined if the trial judge determines that this is warranted. The trial judge can entertain an abuse of process application if there is sufficient evidence to establish that the trial Crown’s conduct in this case in showing a CSO to the trial judge amounted to an abuse of process. The trial judge can also entertain a formal mistrial application, based on the cumulative claimed prejudice in this case. None of these steps have yet been taken.

[53] In summary, the errors alleged in this case are not errors of jurisdiction. If there were errors made in this case, they are properly reviewable by the Ontario Court of Appeal. It is not the function of this court to make rulings on matters which are not errors of jurisdiction, and which are properly within the jurisdiction of the trial judge.

Summary Dismissal:

[54] A presiding judge of the Court may dismiss an application summarily, if it can be determined without a full hearing that the application is manifestly frivolous. Criminal Proceedings Rules, Rule 6.11.

[55] The presiding judge may conduct a preliminary assessment of the merits of any pretrial or other application and may dismiss the application without further hearing or inquiry where the application is manifestly frivolous. Criminal Proceedings Rules, Rule 34.02.

[56] An application is manifestly frivolous where it is obviously doomed to fail. R. v. Haevischer, 2023 SCC 11 at paras 66 and 67. The use of the term manifestly in this context denotes the obvious nature of the inevitability of failure. R. v. Haevischer, 2023 SCC 11 at para 69.

[57] This standard, applied in the criminal context, is designed to “protect the accused’s constitutional rights to a fair trial and full answer and defence while avoiding undue delay and the disproportionate or wasteful use of court resources.” R. v. Haevischer, 2023 SCC 11 at para 2, and 47-59.

[58] Based on my reading of Awashish, the Application is one which is manifestly frivolous as that term is defined in Haevischer. The Applicant is free to formally pursue a mistrial application before the trial judge now that counsel is available to assist her. She may bring an abuse of process application if the trial judge finds that the circumstances warrant hearing that application. If she is convicted, she can appeal that conviction, including my decision to dismiss this matter summarily.

[59] However, there is no basis for this court to find that the trial judge committed an error of jurisdiction.

Conclusion:

[60] On October 1, 2024, the Applicant filed a notice of application for certiorari in aid of prohibition personally, despite Mr. Langevin being on record as defence counsel. On October 9, 2024, Mr. Langevin filed a certiorari in aid of prohibition on behalf of the Applicant. Later, that same day he confirmed that he was on record and the updated application filed on October 9 would be the basis for argument on the application. I have concluded that both of these applications are manifestly frivolous for the reasons I have outlined. None of the errors cited by the Applicant are jurisdictional in nature, nor have any alleged errors resulted in ongoing prejudice which can only be cured by the extraordinary remedy sought in this case. As a result, I have found both applications to be manifestly frivolous and they are dismissed summarily as requested by the Crown.

[61] I did review Mr. Thomson’s submissions regarding the rules for filing an extraordinary remedy. I have outlined them below in the interests of completeness of the record. However, I have dismissed this case not for its failure to adhere to procedural requirements, which I note do engender unfairness to the Crown, but rather because substantively, there is no basis to grant the remedy sought.

Rules regarding filing for an Extraordinary Remedy in Superior Court:

[62] The Rules set out procedural requirements for seeking an extraordinary remedy in the Superior Court of Justice, specifically Rule 43.

[63] Included in the requirements of Rule 43 is the requirement that “An Applicant shall give notice of application in Form 1 and in accordance with rule 43.03 within 30 days after the day on which the order which is the subject of the application was made or given.” Criminal Proceedings Rules, Rule 43.04(1).

[64] Under Rule 34.03 (“Dismissal for Non-Compliance with Rules”) the Court should not hear an application that has failed to comply with the rules governing an application unless the presiding judge grants leave. Criminal Proceeding Rules, Rule 34.03.

[65] Rule 34.03 sets out a list of non-exhaustive circumstances that the presiding judge may take into account when considering dismissal for non-compliance with the rules.

Rule 34.03 Where an Applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

(A) The nature of the applicant’s non-compliance with the rule (B) The apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding; (C) The right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on the merits; (D) The right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant; (E) The need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings; (F) The history of the pre-trial applications and the proceedings; (G) Any notice given to the other parties about the issues raised in the pre-trial applications (H) Any prejudice to any other party in the proceeding; (I) The nature of the issues raised and the extent of their impact on the course of the trial or other proceeding; (J) Any explanation advanced for failure to comply with these rules; and (K) Any other factors the judge considers relevant.

Criminal Proceedings Rules, Rule 34.03

[66] The crown points out that the applications filed both by Ms. Reyes and on her behalf by her counsel do not comply in large measure with the requirements of Rule 43. The notice was not filed within the proper time period, the appropriate transcripts were not all filed and the initial legal argument by Ms. Reyes was drafted in a manner which made it difficult for the Crown to respond.

[67] The crown argues that the failure to file the notice within 30 days, instead filing a few juridical days before the trial is set to resume, creates a prejudice that cannot be remedied. To grant the full hearing on whether to grant the writ of prohibition would de facto grant the prohibition sought, and the trial dates scheduled for October 15-18, 2024 would have to be rescheduled.

[68] Mr. Langevin was on record by May 16, 2024. Counsel was present on July 2, 2024, to request the adjournment of the trial to October 15th.

[69] A review of the enumerated factors in s. 34.03 of the Rules demonstrates that the timing of the application is problematic on several fronts. I agree with the crown that notice of the application could have been made months ago. However, the lack of conformity to the rules was not the basis for the summary dismissal of this matter as I previously indicated.

[70] The Applicant herself also requested that this Court stay the charges due to delay. Any argument regarding delay must be dealt with by the trial judge.

Anne London-Weinstein J. Released: October 15, 2024

COURT FILE NO.: 24-11400125 DATE: 2024/10/15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – Althea Reyes Applicant RULING ON APPLICATION FOR SUMMARY DISMISSAL OF CERTIORARI IN AID OF PROHIBITION Anne London-Weinstein J. Released: October 15, 2024