R. v. McNeil, 2018 ONSC 2131

CITATION : Mian v City of Ottawa, 2018 ONSC 2131 COURT FILE NO.: 17-13299 -00MO DATE: 2018/04/05 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Irfan M. Mian, Applicant (Defendant) and The City of Ottawa, Respondent (Prosecution) BEFORE: Mr. Justice Marc R. Labrosse COUNSEL: Irfan M.

Mian, Self-Represented Madeleine Hayes, Counsel for the City of Ottawa HEARD: March 28, 2017 ENDORSEMENT [ 1 ] The Applicant filed a Notice of Application seeking a stay of proceedings from his charge of driving while holding or using a hand-held communication device, contrary to subsection 78.1(1) of the Highway Traffic Act, RSO 1990, c.H.8 (the “ HTA ”). The requested relief results from the Applicant’s claim that his Charter protected rights pursuant to ss. 7 and 11(

d) have been breached as a result of the Crown’s failure to disclose “any and all records of misconduct after any hearing under the Police Services Act” relating to the OPP officer who issued the offence. [ 2 ] More precisely, the Applicant seeks as part of first party records disclosure, the disciplinary records and employment file for Officer Darren Zorn based on a 2014 Ottawa Citizen

article which provides information relating to a 2013 disciplinary hearing involving Officer Zorn. The

article suggests that Officer Zorn admitted to having a bad drug habit for the six years prior to 2013. Position of the Applicant [ 3 ] The Applicant relies on the extraordinary remedies set out at para. 140 of the Provincial Offences Act , RSO 1990, c.P.33, in claiming relief in the form of an order for certiorari and mandamus for the release of the Officer’s disciplinary records. He contends that those records are essential for him to put forward a full answer and defence in accordance with his right under s. 11(

d) of the Charter . On March 2, 2017, he made the same request before Justice of the Peace S.M. Doyle who denied his request on the basis that the disciplinary records were irrelevant to the charge of driving with a hand-held communication device. [ 4 ] The Applicant states that this is one of those circumstances where the criteria set out in subsection 141(4) has been met and that the failure to disclose the disciplinary records results in a substantial wrong or miscarriage of justice. [ 5 ] Finally, the Applicant relies on R. v.

McNeil , 2009 SCC 3 in support of his position that it is not appropriate to require all such requests for third party disclosure to proceed by way of an O’Connor Application. Position of the Crown [ 6 ] The Crown asks this Court to dismiss the Application on the following grounds: − failure to comply with the 30-day notice requirements in s. 141(1) of the POA ; − that it is inappropriate to seek a Charter relief or relief by way of certiorari at this stage of the proceedings; and − that the disciplinary records in this case are not subject to disclosure.

Analysis The 30- day notice provision [ 7 ] As for the first ground alleged by the Crown, this can be dealt with promptly.

Section 85 of the POA provides for a broad curative power to extend time for service. In argument, no reference was made to the decision of the Court of Appeal in Ontario (Ministry of Labour) v. NMC Canada Inc. (1995) , 1995 CanLII 1641 (ON CA) where the Court of Appeal stated that the court should exercise the power to extend the times prescribed in s. 141(1) unless to do so would prejudice the Respondents. Here, the Crown made no submissions of prejudice and as such, the curative provision under s. 85 of the POA should be applied.

Relief against a pre-trial ruling [ 8 ] It is well established that applications for prerogative writs such as certiorari or for a Charter remedy should only be granted rarely. The Court of Appeal has stated that such relief should be limited to jurisdictional errors and that a refusal to disclose a document to the defence must have a fundamentally important impact on the fairness of the proceeding before in can be considered a jurisdictional error: R. v. 1353837 Ontario Inc. , 2005 CanLII 4189 (ON CA) at para 18 . [ 9 ] I also adopt the view of Malloy J. in Bala v.

Travel Industry Council of Ontario , 2012 Carswell 13234 at para. 6 where she stated that the review of interim or preliminary applications through certiorari is discretionary and should only be available in the rarest of cases.

This perspective finds its support in para 141(4) of the POA which limits the availability of certiorari to situations where the court finds that a substantial wrong or miscarriage of justice has occurred. [ 10 ] In the present case, the Justice of the Peace refused the Applicant’s request for the disciplinary records on the basis that those records were irrelevant and that the Applicant will have the opportunity to explore the subject in cross-examination. While the reasons for the refusal are not extensive, the decision is one that clearly falls within the jurisdiction of the Justice of the Peace.

As the Applicant will be able to explore the matter in cross-examination of the officer, it cannot be said that the decision will have a fundamentally important impact on the fairness of the trial. In addition, such pre-trial rulings can always be reconsidered by the Justice of the Peace who presides over the trial should the evidence warrant disclosure. The disciplinary records may take on more relevance based on how the questions are answered by the witness in cross-examination.

However, I certainly agree that evidence of historical drug use by an officer who has seemingly satisfied his superiors that he is fit to resume his duties has marginal relevance at this point. How far the Applicant can go in cross-examination on this issue and if there will be any merit to some form of documentary disclosure will be determined at trial. [ 11 ] While I see no error in the ultimate decision of the Justice of the Peace to refuse the Application, if I am wrong and that it is an error, it is certainly not an error that goes to jurisdiction.

The disclosure of such disciplinary records [ 12 ] Although I have already disposed of the Application, I think it is important to address certain points made by the Applicant in his reliance on R. v. McNeil to justify disclosure of these disciplinary records. [ 13 ] The Applicant relies on the decision of the Supreme Court of Canada in McNeil in support of his position that requests for disciplinary records should not always require an O’Connor Application before such records will be disclosed.

However, the Applicant went so far as to suggest that it would be easy for first party disclosure in a provincial prosecution to include a

summary of disciplinary matters involving an officer in the form of a McNeil Report as it is normally done in criminal prosecutions. I do not agree. [ 14 ] I begin by highlighting the Crown’s dual role as advocate and officer of the Court. In R. v. Stinchcombe , [1995] 3 S.C.R. 326 , the Supreme Court of Canada recognized the role of the Crown to consider available documents, assess their relevance and determine first party records disclosure. In McNeil , that same court recognized the ability of the Crown to bridge the gap between first party disclosure and third party production.

Further, McNeil stands for the notion that information that is obviously relevant to the accused’s case should form part of first party disclosure without prompting. Once again, the Court must rely on the Crown’s “gate-keeper” function.

Not every finding of police misconduct by an officer involved in a matter will be relevant to the accused’s case and it is certainly not the case that a McNeil Report should be provided as a matter of course in all provincial offences prosecutions. [ 15 ] In the present case, the Crown has specifically stated that it has considered the disciplinary records in question and has fulfilled its “gate-keeping” function that they do not form part of first party disclosure. In the absence of an O’Connor Application , both the accused and this Court must rely on the disclosure provided by the Crown.

This is certainly the case where the information available indicates that the disciplinary proceedings pre-date the current offence by at least two years and relate to the admitted drug use of the officer for which we can assume would have been addressed over that period before the officer in question would be allowed to resume active duty. [ 16 ] Finally, the records in this case are sought to address the issue of credibility at trial and in this case should form part of an O’Connor Application .

The officer in question has a right to be heard and it is likely that even if third-party disclosure is applicable, it would not be the entirety of the disciplinary records that would be required in order to allow the Applicant in this case to address the issue of credibility. [ 17 ] I conclude by noting that the Applicant in this case has been aware of the Crown’s position that an O’Connor Application was the proper procedure to determine if some or all of the disciplinary records should be produced. The Applicant has ignored the Crown’s position and chosen to proceed with this Application.

There is an upcoming trial date for this matter and this date could be impacted if the Applicant commences an O’Connor Application at this late date. The impact that such an application could have on the trial date will fall under the discretion of the trial judge. Conclusion [ 18 ] In the result, both the Charter application for a stay and the application for certiorari to obtain the disciplinary records as part of first party records disclosure are dismissed and the matter is remitted to the Provincial Offences Court for trial .

Justice M. Labrosse Date: 2018/04/05 CITATION : Mian v. City of Ottawa, 2018 ONSC 2131 COURT FILE NO.: 17-13299-00MO DATE: 2018/04/05 ONTARIO SUPERIOR COURT OF JUSTICE RE: Irfan M. Mian, Applicant (Defendant) and The City of Ottawa, Respondent (Prosecution) BEFORE: Mr. Justice Marc R. Labrosse COUNSEL: Irfan M. Mian, Self-Represented Madeleine Hayes, Counsel for the City of Ottawa HEARD: March 28, 2017 ENDORSEMENT Justice M. Labrosse Released: 2018/04/05