R. v. McGill, 2011 ABQB 301

Court of Queen ’ s Bench of Alberta Citation: R. v. McGill, 2011 ABQB 301 Date: 20110503 Docket: 100237858S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - William George McGill Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] The Crown appeals from an award of $400 costs made by the Provincial Court Judge to the Respondent in connection with a disclosure dispute that the Provincial Court Judge determined in favour of the Respondent. [ 2 ] On May 12, 2008 William George McGill was charged, as registered owner of a vehicle, with speeding under s. 115(2)(

p) of the Traffic Safety Act. The charge resulted from a photo radar operation. [ 3 ] Mr. McGill plead not guilty. On the date set for trial, August 10, 2009, Mr. McGill applied for an order requiring the Crown to disclose two manuals for the instrument which had been used in the photo radar operation. He sought the “operator’s manual” and the “technical manual”. After hearing lengthy submissions, Provincial Court Judge Ayotte ordered disclosure.

[ 4 ] Anticipating that the manufacturer of the instrument could have proprietary and confidentiality concerns about the Crown disclosing these documents to Mr. McGill, and wanting to protect the “legitimate interests of the owner of the information”, Judge Ayotte ordered the Crown to provide the operator’s manual and the technical manual within 30 days to a member in good standing of the Law Society of Alberta who would acknowledge the conditions of the order which were: 1 - That the manuals were to be provided by the member of the Law Society to Mr.

McGill’s agent (Michael McGill) for use in preparing and presenting a defence of the speeding ticket. 2 - That neither Mr.

McGill nor the member of the Law Society would disclose or disseminate that material to any other person, save and except for its expert witnesses who would be subject to the same condition. 3 - That neither the manuals nor any parts of them would be copied or retained in any form, electronic or otherwise. 4 - That the manuals would be returned to the Crown and through it to their lawful owner forthwith upon the completion of the trial and any subsequent appeals. [ 5 ] The trial was further adjourned and came before Provincial Court Judge Myers on December 21, 2009. [ 6 ] Mr.

McGill advised Judge Myers that the Crown had not complied with Judge Ayotte’s order. It had disclosed the operator’s manual. It had not disclosed the technical manual. Mr. McGill had retained a member of the Law Society, Mr. Foisy, to receive disclosure pursuant to Judge Ayotte’s order. [ 7 ] Crown counsel, Mr. Colley, advised Judge Myers that pursuant to Judge Ayotte’s order the Crown had contacted the manufacturer of the instrument and had been referred to an Edmonton lawyer, Mr. Rob McDonald of Fraser Milner Casgrain, who represented their interests.

He further advised that he had no “direct knowledge of a technical manual even being in existence”. As far as he knew the only manual in existence had been disclosed. He advised the Court that, “we have a man that is an electrical engineer here from the United States from LT1 [the manufacturer] for today’s court date”. [ 8 ] Mr. McGill advised Judge Myers that he was certain a technical manual existed because he had seen it in a previous case in which he had been involved. He observed that Mr. Colley had represented to Judge Ayotte that the manual existed. Mr.

Colley denied this and repeated that he was not aware of the existence of such a manual and observed that there was no reference to any such manual in the cases from the Ontario Court of Appeal (which, presumably, though he did not cite them, dealt with the same issue). [ 9 ] Judge Myers decided initially that the only proper course was to obtain the transcript of the proceedings before Judge Ayotte to discover how Judge Ayotte had come to the conclusion that a technical manual existed. Then, it appears, Judge Myers conceived that there might be an easier route to clarity.

On his own initiative he asked the American engineer who Mr. Colley had brought to court whether there was a technical manual. The engineer responded that to his knowledge there was, or at least there were documents that were more in depth as to the workings of the instrument than the operator’s manual. He agreed that something along the lines of a technical manual for the instrument existed. [ 10 ] Mr. Colley then submitted that there could be a problem with disclosure arising from the manufacturer’s proprietary interests.

Judge Myers agreed that could be a problem but then observed: Oh, for sure, but of course, that’s in the face of the order, I mean, somebody’s got to say judge, sorry, you ordered the thing, but you shouldn’t have, you know, you just don’t do it right at the – at the trial date and – and then say, jeez, you shouldn’t have ordered it, but we’re not going to comply with it, we’re not going to tell you one exists, and we’ll just wait and then we’ll have to go through this – I mean, like, it’s a disclosure this . . .

[ 11 ] Mr. McGill interrupted to observe that Judge Ayotte had dealt with the proprietary issue. The prosecutor said he had not.

Judge Myers said: See – clearly, and I’m – because I don’t know, I don’t know the – I don’t know what happened on August 11, 2010 – 2009, but I do note that His Honour, Judge Ayotte, certainly laid out a process which would protect – at least he had proprietary interests in mind when he’s saying, okay, we’re not just going to let these things go out willy nilly, get a member of the Law Society, he’s got to take this, he’s going to show it to the experts, you can’t make copies of it, if you do make copies of it they’re going to be destroyed, you know, I mean, he clearly had that – he clearly had that in mind. [ 12 ] Judge Myers took a short recess to consider the disposition he would make.

When court resumed, Mr. Colley advised that he had, during the recess, been in contact with Mr. Rob McDonald, the Edmonton lawyer who, he had been advised several months earlier, represented the manufacturer’s interests. He said that Mr. McDonald: ... has instructed me to advise the court that if Mr. McGill wishes to view the matter, because of proprietary relationship to the matter, that he’s more than welcome to appear himself, with his experts, into Fraser Milner Casgrain’s office, to view the manual with any expert whom he wishes to bring with him, and that if this is not satisfactory to Mr.

McGill, that he will represent Laser Technology on the next court date with regards to any application to release information that is of a proprietary nature. [ 13 ] Mr. McGill objected that Judge Ayotte’s order established how disclosure was to proceed. He insisted that nothing less than compliance with the terms of that order would do. [ 14 ] Judge Myers agreed with Mr. McGill. He ruled: Okay. And I don’t accept any malfeasance on your part, Mr. Colley. You don’t get this one wrong. However, here’s what I’m going to do. I appreciated Mr. McDonald’s comments, but sadly that’s just not good enough.

The court ordered that – first of all, the court crafted an order which would – had proprietary interests in mind and when they crafted this, there is no logical explanation why His Honour, Judge Ayotte, would have gone through this process but concern with the interests of LT1. I’m not prepared to go along with Mr. McDonald’s comments. There was an order of Judge Ayotte, and it will be followed, that will be that. This order – I will give them until January 20 th to comply with it, those documents will go to Mr. Foisy, according to the process that was laid out in His Honour, Judge Ayotte’s order.

This matter will be back before the court on January 27 th , that’s a docket day, to fix a trial date, and there will be $400 costs, payable to the accused, by the Crown by the 27 th of January, 2010. Thank you, gentlemen. [ 15 ] The matter returned to court on further occasions to fix a new trial date. Ultimately the Information was stayed by the Crown on April 27, 2010 without the technical manual having been disclosed. The $400 costs were paid to Mr. McGill. [ 16 ] Mr. McGill filed an appeal from the Crown’s stay of the charge. The hearing of the appeal was adjourned twice at Mr. McGill’s request.

At the last adjournment it was adjourned peremptorily as against Mr. McGill who had not filed the required appeal brief. Mr. McGill did not file the brief. The appeal came before me on April 15. Mr. McGill sought a further adjournment. Given the peremptory adjournment and the apparent absence of any merit in the appeal, I denied that application and summarily dismissed Mr. McGill’s appeal.

[17] The Crown appealed both the disclosure order and the order for costs. It has abandoned its appeal of the disclosure order. The appeal of the costs order came before me, also on April 15. [18] Despite Mr. McGill’s arguments to the contrary, there is no doubt of the Court’s jurisdiction to hear an appeal on an error oflaw from an order of costs granted by a

summary conviction court. See R. v. Krueger, (2006) 2006 ABCA 63 , 380 A.R. 182,206 C.C.C. (3d) 390 (ABCA). [19] In Krueger the Provincial Court Judge had ordered $2000 costs against the Crown when Crown disclosure had beenincomplete. The Provincial Court Judge held that there had been a breach of the accused’s Charter s. 7 right to disclosure and that theCrown’s conduct was not to the standard he expected. He stayed the charge and awarded the $2000 costs. The Queen’s Benchoverturned the stay and set aside the costs award. [20] The Court of Appeal dismissed the appeal from the Queen’s Bench.

On the costs point, the Court of Appeal held that theProvincial Court Judge erred in law in making the award. The error of law consisted of the Provincial Court Judge’s failure to provide: . . . analysis demonstrating that the conduct of the Crown was a marked and unacceptable departure from the reasonable standardsexpected of the prosecutor. Rather, the trial judge seemingly dwelt upon the imposition upon his time that was necessitated by theadjournment on October 8, 2003 and the hearing of the subsequent Charter application.

An analysis of the reasons of the trial judge forawarding costs against the Crown thereby discloses an error in principle and is erroneous in point of law. [21] The Crown submits that the Provincial Court Judge here also erred in law when he ordered costs of $400 against the Crown. Specifically the Crown submits Judge Myers erred in law by:

a) failing to provide reasons for his order thus precluding a meaningful review on appeal.

b) failing to hold a separate inquiry or hearing into whether there had been a breach of the accused’s Charter right justifying a costsorder as a remedy under Charter s. 24(1).

c) failing to allow the Crown to make submissions as to costs before making the costs order.

d) failing to apply the proper test for awarding costs given that “there was no demonstrable impact on the ability to make fullanswer and defence”, or malfeasance on the part of the Crown. [22] The Court’s powers on appeal are set out in s. 830 of the Criminal Code. They include the power to affirm, reverse ormodify the judgment or order from which the appeal was taken or to remit the matter to the

summary conviction, and to “make any orderin relation to the matter or with respect to costs that it considers proper”. [23] In my view this case is distinguishable from Krueger. Unlike Krueger, the issue of disclosure here had been the subject of aday long hearing before Judge Ayotte four months earlier. Judge Ayotte had made a careful disclosure order. The Crown had onlypartially complied with the order. It disclosed the operating manual as ordered, but had not produced the technical manual.

The Crownhad apparently not made any inquiry as to the existence of the technical manual within the 30 days Judge Ayotte allowed for disclosure. Even three months later, at the commencement of the proceedings before Judge Myers, the prosecutor did not know whether or not thetechnical manual existed. However, during the proceedings before Judge Myers it was discovered through an expert witness who theCrown had brought to court (but who the Crown apparently had not asked about the existence of the technical manual) that such amanual in fact existed.

Further, before Judge Myers ruled, the prosecutor discovered that the technical manual was in the possession ofthe manufacturer’s Edmonton lawyer, a fact that he had not previously learned though he had been in contact with that lawyer for severalmonths.

[ 24 ] Judge Myers ordered the Crown to comply with the order they had been directed to comply with four months earlier. Though Judge Myers may not have been prepared to label the Crown’s conduct “malfeasance” he considered it unacceptable. To the prosecutor he said, “You don’t get this one wrong . . .

There was an order of Judge Ayotte, and it will be followed, that will be that.” [ 25 ] On a review of the transcript, it cannot be seriously questioned that Judge Ayotte considered the prosecutor’s conduct a marked and unacceptable departure from the reasonable standards expected of the prosecutor, and that the circumstances justified that assessment. There was an unexplained failure on the part of the Crown to uncover information which was easily available from the expert the Crown had itself brought to court and discoverable from the lawyer to whose office the Crown had been directed. Mr.

McGill had been put to the trouble of making application for the same Charter relief twice when he had succeeded the first time. An order for costs was justified. [ 26 ] As to the Crown’s specific submissions as to error in law (listed in paragraph 21 above), in my view:

a) Judge Myers’ oral reasons provided adequate explanation as to why he considered an order for costs appropriate.

b) The question of whether there was a breach of Mr. McGill’s Charter right had been fully canvassed in the proceedings that resulted in Judge Ayotte’s order. The justification for the costs was the unreasonable failure of the Crown to comply with Judge Ayotte’s order. There was no new Charter breach to establish. It was the same breach as Judge Ayotte had already ruled upon.

c) In an application of the type that was before Judge Myers, a costs award is a possible remedy. Counsel are presumed to know that and to have made their submissions accordingly. Further, the prosecutor did not indicate to Judge Myers after he made his ruling that there was some submission he would have made about costs, or that he would like time to formulate a submission. No doubt Judge Myers would have permitted such further submission to be made and reconsidered his costs order in light of it.

d) Judge Ayotte in making his order found that Mr. McGill’s right to make full answer and defence was impacted by the Crown’s failure to disclose the manuals Mr. McGill had requested. That question was not before Judge Myers. If the Crown’s submission is that no costs award can be justified absent malfeasance, I reject it. Krueger does not so suggest.

In my view the failure to comply with Judge Ayotte’s order, which involved the failure to make very simple inquiries, was sufficient justification for the costs order. [ 27 ] I affirm Judge Myers’ disposition as to costs. [ 28 ] If, contrary to my view, Judge Myers’ articulation of reasons was deficient, or he failed to give the Crown opportunity to address costs before making his order, and either amounts to an error of law, the proper disposition is not to reverse his order as to costs.

If, contrary to my view, the justification for the costs order is not clear in Judge Myers’ reasons, it is surely clear from these reasons. The Crown had full opportunity to make any submission as to costs that it considered appropriate before me. It is appropriate in my view for me to order, in the alternative, that despite any error of law in Judge Myers’ ruling (of which, in my view, there was none), the costs order he made was justified in the circumstances. It should remain in place. [ 29 ] The Crown’s appeal is dismissed. [ 30 ] Given that Mr.

McGill was delinquent in relation to his own appeal, which, as noted, came on for hearing with the Crown’s appeal and was dismissed at the hearing, he is not entitled to costs of this appeal though he was successful in it. There will be no order as to costs of either appeal.

Heard on the 15 th day of April 2011. Dated at the City of Edmonton, Alberta this 3 rd day of May 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Maria Caffaro for the Appellant Michael McGill, agent for William George McGill