Toronto Criminal Lawyer - Impaired Driving and over 80 charges dismissed

Ontario Court of Justice (Provincial Division)
Toronto, Ontario
Provincial Judge Fairgrieve

¶ 1 FAIRGRIEVE PROV. J. (orally): In addition to the order for further disclosure which was sought and, with the Crown's consent, granted, the accused has applied for an order that the Crown pay his costs of the disclosure application. Mr. Penney argued that costs would be part of the appropriate remedy under section 24(1) of the Charter for the alleged breach of Mr. Derek D.'s section 7 rights that resulted when the Crown failed to provide promptly the additional disclosure requested by the defence. To be more specific, the accused has asked for an order that the Crown pay him the $500 plus GST charged by his counsel for his court attendance to argue the application. The application was considered necessary to compel the disclosure which Mr. Penney's repeated written requests to the Crown and phone calls to the investigating officer had to that point failed to produce.

¶ 2 Mr. Derek D. was charged on February 2, 1995, with impaired driving and "over 80" offences allegedly committed the day before. Mr. Penney was retained as counsel shortly thereafter, and on February 22, 1995, he ordered disclosure from the Crown. The initial disclosure received March 15th apparently included the usual statements or copies of notes of the arresting officer and the qualified technician who had conducted the breath tests. For the ordinary drinking and driving case, that would probably have been regarded by defence counsel as sufficient. In this case, however, other officers had had contact with the accused at the relevant time, and Mr. Penney, commendably thorough in his preparation, wanted to ensure that those witnesses had made no observations that might have had a bearing on the case for or against his client. The same day he received the initial material, he sent a letter to the Crown Attorney's office asking for additional disclosure relating to the notes of the arresting officer's escort and the two other officers who had transported the accused from where he was arrested to the Central Traffic Unit where the breath tests were conducted. This letter evidently produced no response.

¶ 3 Three weeks later, when Mr. Penney had a pre-trial meeting with a member of the Crown Attorney's office, it was agreed that Mr. Penney would fax her a copy of his letter of March 15, 1995, and she undertook to contact the officer in charge, P.C. T*****. Another "pre-trial" was arranged for the purpose of obtaining the additional disclosure. When that meeting was held with another Crown Attorney on May 15, 1995, the additional material had still not been provided. Crown counsel again indicated that she would contact P.C. T*****. Two days later, the case was fixed for trial, although the disclosure remained incomplete.

¶ 4 Mr. Penney himself made repeated attempts to contact P.C T***** by telephone. He left messages eight times, according to the affidavit filed in support of the application, requesting that the officer contact him about the outstanding disclosure. He had no response of any kind. On May 18, 1995, Mr. Penney faxed another letter to the second Crown counsel with whom he had met, asking that she contact him concerning his difficulty. When there was no reply, Mr. Penney finally, on May 26, 1995, filed notice of this Charter application, seeking an order to compel the further disclosure, with costs. The application was made returnable on June 9th, three weeks prior to the trial date. Mr. Penney explained that he gave the Crown eleven days' notice to allow them yet another opportunity to provide the missing material and to avoid a hearing of the application. Again, when there was no reply from the Crown's office, Mr. Penney proceeded with the hearing of the application.

¶ 5 Mr. Geurts had the misfortune to be counsel for the Crown in 112 Court, where Mr. Penney's application was brought. He had had no prior involvement with the file and knew nothing about the case apart from what was indicated by the entries on the Crown's brief. It appeared that after the Charter application was received, the Crown's office on May 30, 1995, ordered the brief to be brought from the police division. Two of the three items requested by Mr. Penney were found to be included in the Crown's package on the morning this application was heard. Exactly when they had been received by the Crown Attorney's office was as uncertain as the reason why defence counsel had not been notified that they were available or why the third statement requested had still not been produced.

¶ 6 Mr. Geurts did not suggest that Mr. Penney was not entitled to the material he sought, and he did not oppose an order that the missing notes of the third officer, P.C. B****, be disclosed forthwith. That order was in fact made with the Crown's consent. Later that day, after the application had been heard and Mr. Penney had left, Mr. Geurts stated that the officer was bringing a copy of his notes to the Crown's office that afternoon so that it could be given to the defence immediately. I assume that that occurred, since the subsequent endorsements on the information indicate that the trial in fact proceeded on the date that had already been set.

¶ 7 I reserved judgment on the application for costs because, while it was immediately apparent that the equities were on the accused's side, not many cases dealing with such applications for costs against the Crown had been brought to the Court's attention, and it seemed advisable to put the matter over for a more informed, less instinctual disposition.

¶ 8 It appeared to be common ground that the Criminal Code does not grant, either expressly or by necessary implication, any jurisdiction to order costs against the Crown on a disclosure application by the defence. It follows that the order sought could only be made as part of a Charter remedy: see R. v. 974649 Ontario Inc. (1995), 101 C.C.C. (3d) 48 (Ont. Gen. Div.) per McRae J. at p. 55. I appreciate that if the disclosure order to which the Crown consented is regarded itself as part of a s. 24(1) remedy, it might suggest that a Charter breach had already been conceded, but I think it is fairer to say that Mr. Geurts recognized the Crown's duty to make full disclosure, both at common law and constitutionally, and accordingly had no reason to oppose an order from the Court that it provide what it was prepared to give voluntarily in any event.

¶ 9 While the Supreme Court of Canada in R. v. Stinchcombe (1991) 68 C.C.C. (3d) 1, per Sopinka J. at p. 13, stated that the principles enunciated there would not necessarily apply with the same impact in summary conviction proceedings, and that the rights make full answer and defence entrenched in section 7 might be of a more limited nature in such cases, the Crown did not argue that different rules should govern disclosure in a case of this kind. No issue was taken with the application here of Sopinka J.'s statement, at p. 14, that "[p]rovided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information." When such compliance was not forthcoming, His Lordship stated (at pp. 12-13) that

Sopinka J. obviously had in mind applications for the purpose of reviewing the exercise of the Crown's discretion to withhold or delay disclosure, and not simply to force the Crown to attend to a matter which it had to that point persistently failed to pursue.

¶ 10 The extent and timing of the Crown's disclosure obligation were further examined in R. v. Egger (1993), 82 C.C.C. (3d) 193 (S.C.C.), where, at p. 203, Sopinka J. held that the provision at issue in that case (section 258(1)(d) of the Criminal Code)

... must be interpreted, where reasonably possible, in accordance with the principle underlying this Court's decision in R. v. Stinchcombe [supra], that the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused's ability to make full answer and defence, and to do so early enough to leave the accused adequate time to take any steps he or she is ejected to take that affect or may affect such right.

Finally, as to the timing of disclosure, the court held in Stinchcombe that initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. The reason for this was that "[these] are crucial steps which the accused must take which affect his or her rights in a fundamental way. (at p. 14) This reasoning does not apply just to the fundamental steps of election or pleading, but to any situation in which the accused is expected to take steps which affect or may affect his or her right to make full answer and defence. The Crown's disclosure obligation in such circumstances extends at least to the disclosure of information which is relevant and necessary for the accused to make a decision whether or not to take such steps.

¶ 11 In the context of a failure to provide complete disclosure, it has been stated that a conclusion that section 7 has been violated requires a finding that the accused's ability to make full answer and defence has probably been impaired: see R. v. O'Connor (1994), 89 C.C.C. (3d) 109 at p. 149 (B.C.C.A.); appeal to S.C.C. pending (37 C.L.Q. 11):

Failure by the Crown to disclose relevant information does not result in a breach of the accused's right not to be deprived of liberty except in accordance with the principles of fundamental justice, unless that non-disclosure is material in the sense that it has impaired the ability of the accused to make full answer and defence. An accused who seeks a constitutional remedy for a non-disclosure by the Crown must first establish the probability that the non-disclosure was material in the sense I have described.

It follows from the foregoing that mere failure by the Crown to make all relevant disclosure before the trial actually begins, is unlikely, in itself, to result in a constitutional remedy. It is only where the non-disclosure, even at that stage of the proceedings, can be shown to be material to the ability of the accused to make full answer and defence that a remedy will be available under section 24(1) of the Charter.

...

Finally, it is apparent that the review process itself is not a constitutional inquiry, since the only determination to be made in such a proceeding is whether the accused is entitled to that which the Crown claims is excluded from the general rule that requires disclosure of all relevant information. Disclosure orders by a trial judge are made in the ordinary course of exercising the jurisdiction which all trial judges have to make all orders necessary to the effective management of the court's process and the fair trial of the accused. They are not "remedies" under section 24(1) of the Charter.

I will proceed on the assumption that that is an accurate statement of the law in Ontario as well, although there seems to be a number of cases where non-disclosure in itself, rightly or wrongly, has been equated with a section 7 violation.

¶ 12 Even without knowing the precise content of the undisclosed notes from the three officers here, I am prepared to conclude that their non-disclosure probably prejudiced the ability of the accused to make full answer and defence, in the sense that the accused was deprived of his right to properly prepare for trial, fully informed of all of the evidence potentially available to the Crown against him or, less likely perhaps, of the police evidence of potential assistance to him in his defence. 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 and, as a result, likely impede his right to make full answer and defence protected by section 7 of the Charter.

¶ 13 I appreciate that it could be argued (although Mr. Geurts did not take this position) that because the application was beard prior to trial, i.e., on a date when Mr. Derek D. was not going to be required to make full answer and defence in any event, it could not be said that there was any prejudice to his ability to do so. Mr. Penney, submitted, however, that the accused should not be in a less advantageous position, so far as his assertion of his section 7 rights is concerned, because he chose to comply with Stinchcombe and bring the matter before the court earlier rather than later, thereby avoiding the necessity of an adjournment of the trial and the expense and inconvenience that would have caused to both sides. I agree with that submission.

¶ 14 In support of this conclusion, I would cite two cases where non-disclosure was found to amount to a Charter breach at a stage prior to trial and where, in fact, costs were ordered against the Crown. In R. v. Fletcher (Ont. Prov. Div., April 21, 1994, unreported), Ormston Prov. J. awarded costs in the amount of $2600 plus GST against the Crown to compensate the accused for the additional expenses incurred as a result of a pre-trial disclosure application. It is interesting that the Crown there had already provided the missing material, as part of what was described as an effort at "damage control", after having been given notice of the application. No such effort appears to have been made by the Crown in this case. Similarly, in R. v. S.V.L. and H.V.L. (Ont. Prov. Div., July 21, 1995, unreported), Rogers Prov. J. ordered costs against the Crown when, after being served with notice of a disclosure application, the Crown moved to withdraw the charges against the accused.

¶ 15 I am satisfied here that the failure of the Crown to provide "timely" disclosure, within the meaning of Stinchcombe and Egger did impede the accused's preparation for trial and did impair his ability to make full answer and defence at that time. That being the case, I find that the applicant has discharged the burden of establishing, on a balance of probabilities, that at the time of the application there had been a breach of his section 7 Charter rights. That finding requires me to proceed to consideration of whether costs against the Crown is part of the remedy "appropriate and just in the circumstances" which is authorized by section 24(1).

¶ 16 A Provincial Court's jurisdiction to order costs as part of a Charter remedy, at least when it is the trial court, has been authoritatively recognized: see R. v. Jedynack (1994) 16 O.R. (3d) 612, 20 C.R.R. (2d) 335 (Ont. Gen. Div.); R. v. Pang (1994), 95 C.C.C. (3d) 60 (Alta. C.A.).

¶ 17 In R. v. Pawlowski (1993), 79 C.C.C. (3d) 353 at p. 356, 20 C.R. (4th) 233 (Ont. C.A.); leave to appeal to S.C.C. refused 83 C.C.C. (3d) vi, 25 C.R. (4th) 67n, Galligan J.A. stated that superior courts, which had inherent jurisdiction prior to the Charter to award costs against the Crown in criminal cases only where there had been serious misconduct on the part of the prosecution, had under section 24(1) enlarged grounds that allowed such jurisdiction to be exercised following a Charter breach. In the opinion of Harradence J.A. in Pang supra at p. 70, "there is no material difference between the situation of the superior court and that of the Provincial Court" in this regard.

¶ 18 In Jedynack supra at p. 343 C.R.R., Goodearle J. outlined in a general way the limited circumstances, in his view, when awarding costs against the Crown as a Charter remedy would be appropriate:

In the meantime it would be my view that such an order should only be made in circumstances where:

(1)	The acts or failures to act, collectively amount to something well beyond inadvertent or careless failure to discharge a duty;
(2)	rather the conduct would have to fall within the realm of recklessness, conscious indifference to duty, or whether conscious or otherwise, a marked and unacceptable departure from usual and reasonable standards of prosecution;
(3)	such conduct must be seen to have resulted in an indisputable and clearly measurable infringement or denial of a right;
(4)	where the costs order is intended to ensure compliance with an order or show disapproval for conduct which resulted in serious prejudice to the accused it should, as well, be founded in circumstances of clear and obvious compensatory need.

Nothing even close to a standard of perfection should be imposed on prosecutors who, in this day and age, are overburdened with work, and as the case here, often largely dependent upon outside resources over which they have little daily control in the development of their cases, which many times impact on the discharge or the manner in which they are able to discharge their duties.

It would be very much contrary to the best interests of law-abiding society, to allow a policy to develop that in effect allowed costs awards on a routine basis. For such a policy, if ever allowed to blossom, could terribly fetter, even cripple, an orderly and generally competent prosecution process.

¶ 19 The order of Reilly Prov. J., as he then was, which was the subject of review in Jedynack had been made after his finding that there was (at p. 338 C.R.R.) "administrative or bureaucratic inefficiency", arguably caused by "carelessness", "a lack of appropriate lines of communication in the special circumstances of this case", and "the failure of the police to give an appropriate priority to this-case". At p. 344 C.R.R., Goodearle J. summarized Judge Reilly's conclusions as findings that "the Crown failed to act at all times with due diligence, though it was not at any time in bad faith", and that "the accused was put to a clear-cut extra and unnecessary expense by reason of the Crown's failure to fully comply with a disclosure order". Goodearle J. went on to state that while he would not himself have ordered costs in those circumstances, he would not interfere with the order that had been made.

¶ 20 The same cautious approach to awarding costs against the Crown was taken by Baynton J. in R. v. Riendeau [1993] S.J. No. 184 (QL), 108 Sask. R. 208:

In my view, the thrust of the Charter is not to provide financial compensation by way of damages or reimbursement of legal costs occasioned by a Charter breach, but rather to guarantee that the basis rights and freedoms granted by it to persons are in fact provided to those persons.

...

There is no question that the non-disclosure in this case was inadvertent. The Crown did not intend to hide potential evidence, to mislead defence counsel or the court, or to deliberately withhold relevant evidence. If the court in this case orders the Crown to indemnify the applicant for his legal costs, it will establish a precedent so that an award of such costs must be granted routinely each time that a non-disclosure occurs, no matter what the circumstances might be.

Largely on the basis of this judgment, Graeme Mitchell in his article, "Significant Developments in Criminal Charter Jurisprudence", (1995), 38 C.L.Q. 22 at p. 41, concluded that "in the criminal law, financial compensation must be viewed as an exceptional exercise of the remedial power found in the Charter".

¶ 21 In Pawlowski, supra at p. 357 C.C.C., Galligan J.A. referred to the concern expressed by the Crown that the costs order in that case might "start a rush of claims for costs against the Crown in criminal cases where a Charter infringement has been established", but His Lordship did not regard the impugned costs award there as having broad precedential value, given Chadwick J's description of the case as "rare", "unique" and unlikely to be repeated. On the other hand, I do not read Pawlowski as deciding that costs can be considered as part of an appropriate remedy only where a case can be characterized in the same terms used by Chadwick J.

¶ 22 In this regard, it is interesting that Harradence J.A. in Pang supra at p. 74, disagreed with Goodearle J.'s attempt to provide general guidelines as to when costs awards would be appropriate:

¶ 23 In Ontario, where Goodearle J.'s directions are presumably binding on summary conviction trial judges, I think it is accurate to say that orders awarding costs against the Crown have become unexceptional as part of remedies granted for Charter infringements resulting from non-disclosure: see, for example, R. v. Gallant (Ont. Prov. Div., Otter Prov. J., September 22, 1994, unreported); R. v. Dicker (1991), 14 W.C.B. (2d) 399 (Ont. Prov. Div., Lampkin Prov. J.); R. v. Moreira, [1995] O.J. No. 104 (Ont. Prov. Div., Shamai Prov. J., January 17, 1995); R. v. Smith, Tessier & Tessier, [1995] O.J. No. 1473 (Ont. Prov. Div., Nicholas Prov. J., May 11, 1995); Carlini Bros. Body Shop Ltd. v. R. (1992), 10 O.R. (3d) 651 at p. 669 (Ont. Gen. Div.).

¶ 24 In terms of characterizing the facts of the present case, I think it is clear that Mr. Penney brought the disclosure application only as a last resort when more informal procedures, which ought to have produced the additional disclosure, had proved unsuccessful. I am also sure that the Assistant Crown Attorneys with whom Mr. Penney dealt at the pre-trial meetings recognized that the defence was entitled to the missing notes, regardless of their ultimate significance, just as Mr. Geurts did when the application was heard I will assume that they made the effort, ineffectual or not, that they told Mr. Penney they would make to bring the matter to Cst. T*****'s attention. There appears, however, not to have been any follow-up on their part, and the matter was evidently allowed to slip back into a bureaucratic void after their contact with Mr. Penney. It would seem that there is no administrative procedure in the Crown Attorney's office at the Old City Hall that would compel particular Crown counsel to take responsibility for solving such disclosure problems when he or she encounters them, or, indeed, to even ensure that such letters from defence counsel are acknowledged and acted on (which, quite apart from the Crown's obligation to provide full disclosure, one might have regarded as an expected professional courtesy).

¶ 25 Mr. Geurts argued that in the absence of any evidence concerning the reason why Cst. T***** failed to respond to the inquiries from the Crown or to answer Mr. Penney's phone calls or to furnish the requested notes (assuming that he had not sent them to the Crown's office where they went unnoticed), it should not be inferred that no explanation was available that might excuse the officer's apparent indifference or neglect. I do not think, however, that it would be reasonable to place any kind of burden on the accused to account for the police officer's conduct, particularly when one of the complaints is that the officer refused to reply to defence counsel's calls or to provide any information to him. As part of his section 24(2) analysis in R. v. Bartle (1994) 33 C.R. (4th) 1 at p. 32 (S.C.C.), Lamer C.J.C. quoted with approval a passage from p. 397 of Sopinka, Lederman and Bryant, The Law of Evidence in Canada:

¶ 26 It does not seem sensible to speculate that, although the Crown provided no explanation and apparently made no inquiries, the officer might very well have had legitimate reasons for ignoring communications from the Crown and defence counsel. Rather, I think that I must deal with the costs application simply on the basis that no explanation for the delayed or missing disclosure has been offered by the Crown.

¶ 27 In my view, the circumstances here meet the relatively stringent test for awarding costs articulated in Jedynack. While it cannot be said that the failure to provide complete disclosure resulted from any wilful misconduct or deliberate attempt to withhold the material, the diligence and persistence of Mr. Penney was met repeatedly by a completely inadequate response on the part of the Crown and the police officer. I appreciate the administrative difficulties for the Crown Attorney's office which, it should be said, managed to process almost 30,000 criminal charges at the Old City Hall last year with a disclosure system that generally seemed to operate quite successfully. I also understand that this was a routine drinking and driving case that would not, in the normal course, have a particular Crown counsel assigned to it or be expected to attract much interest. In my view, however, serious and unacceptable lapses occurred which resulted in the matter simply being left to the investigating officer or the Crown's disclosure clerk, with no further inquiries or supervision. At some point, when repeated letters and phone calls from defence counsel to the Crown Attorney's office and the police officer, even after notice of this application, continued to be ignored and produced nothing, the line was crossed between mere administrative inefficiency or ineffective communication and a marked departure from acceptable prosecutorial standards.

¶ 28 The accused was unreasonably put to additional expense as a result of the hearing of what the Crown really should have identified as a completely unnecessary application long before it came to court. There was no issue here that required the court's intervention or adjudication. While Sopinka J. contemplated, at pp. 12-13 of Stinchcombe applications to review the exercise of the Crown's discretion to delay or withhold disclosure, and while it might be argued that such applications should be viewed as part of the normal criminal process that should not attract any remedial costs awards, that is not what occurred here. Indeed, the fact that the missing disclosure was so readily forthcoming once the application was brought to Mr. Geurts' attention demonstrates, it seems to me, how easily the additional expense to the accused could have been avoided with minimal effort at any time during the preceding months, but particularly after notice of the application was given to the Crown.

¶ 29 I think it is right that the Crown, rather than the accused, should bear the burden of the added costs in these circumstances. To use the words of section 24(1), I am satisfied that the "appropriate and just" remedy for the Charter infringement that occurred here should include an order of costs against the Crown.

¶ 30 It is accordingly ordered that the Attorney General of Ontario pay to the applicant forthwith the sum of $535, being his counsel's fee plus GST, incurred by him as a result of the disclosure application.