Derek's Case — Impaired Driving & Over 80 — Press Report

CROWN MUST PAY THE COST OF DISCLOSURE APPLICATION
By Monique Conrad, The Lawyers Weekly Magazine, 16 February 1996

TORONTO—When the Crown failed to disclose witness statements in an impaired driving case, even after repeated letters and phone calls from defence counsel, "the line was crossed between mere administrative inefficiency and a marked departure from acceptable prosecutorial standards," an Ontario Court (Provincial Division) Judge has ruled.

Judge David A. Fairgrieve ordered the Crown to pay defendant Derek D. $535 to cover the cost of a disclosure application to compel the Crown to produce the missing statements.

Mr. D. was charged in February 1995 with impaired driving and over 80 offences.

The initial disclosure by the Crown in March did not include statements from three police officers who had dealt with the accused, in addition to the arresting officer.

Defence counsel Craig J. Penney, a Toronto sole practitioner, made several attempts to obtain the statements from various Crown attorneys and the investigating officer through letters, phone calls and pre-trial meetings, but with no success.

On May 26, 1995 he filed notice of a Charter application seeking an order to compel further disclosure, with costs.

At that hearing, two of the missing statements were produced, and the order for disclosure of the third was made with the Crown's consent.

Defence counsel also asked for costs, arguing that they were an appropriate remedy under section 24(1) of the Charter for the alleged breach of Mr. D.'s section 7 right to make full answer and defence when prompt disclosure was denied.

Before making the award, Judge Fairgrieve said he had to consider two questions: was there a breach of Mr. D.'s Charter rights and should costs be awarded against the Crown under the circumstances?

He said the Criminal Code allows an order of costs to be made against the Crown on a disclosure application by the defence only as part of a Charter remedy. The onus was on the accused to establish that his section 7 rights had been breached, and his ability to make full answer and defence was therefore impaired.

In Mr. D.'s case, he said, even without knowing the content of the missing statements, "if three officers dealt with the accused and made observations of his sobriety or impairment at the relevant time, it is difficult to find that the failure to disclose their notes would not prejudice the accused's ability to prepare properly for trial."

Judge Fairgrieve noted that the Provincial Court's jurisdiction to order costs as part of a Charter remedy is set out in R. v. Jedynack (1994), 16 O.R. (3d) 612, which says such orders should only be made where the Crown's conduct constitutes an "unacceptable departure from usual and reasonable standards of prosecution [resulting] in an indisputable and clearly measurable infringement or denial of a right."

In this case, he said, "I think it is clear that Mr. Penney brought the disclosure application only as a last resort when more informal procedures had proved unsuccessful."

Despite the fact that Crown counsel recognized that the accused was entitled to the missing statements, and may have made some attempt to obtain them, "the matter was evidently allowed to slip back into a bureaucratic void," the Judge wrote.

Stringent Test

He found that the circumstances met the "relatively stringent test" in Jedynack for awarding costs, because, although there was no wilful misconduct on the part of the Crown, the defence counsel's requests for disclosure were "met repeatedly by a completely inadequate response on the part of the Crown and the police officer."

As a result, the accused was unreasonably put to the additional expense of bringing an application which could have been avoided with minimal effort by the Crown.

The Crown was represented at the disclosure hearing by Robert M. Guerts.

[This article originally appeared in the 16-February-1996 issue of The Lawyers Weekly published by LexisNexis Canada Inc.]

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