SHANE PETER LEONARD v. THomas SNOW, 2018 NLSC 213

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Leonard and Snow, 2018 NLSC 213 Date : October 24, 2018 Docket : 201801G3970 and 201801G3972 BETWEEN: SHANE PETER LEONARD AND THomas SNOW APPLICANTS AND: HER MAJESTY THE QUEEN RESPONDENT Before: Justice William H. Goodridge Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John's, Newfoundland and Labrador Date of Hearing: October 19, 2018 Date of Oral Decision: October 24, 2018

Appearances: John W. Lavers Counsel for Shane Leonard Kenneth M. Hollett Counsel for Thomas Snow Trevor N. Bridger and Elaine M. Reid Counsel for the Respondent Authorities Cited: CASES CONSIDERED: R. v. Williams, (SCC), [1998] 1 S.C.R. 1128; R. v. Papadopoulos (2005), (ON CA), 196 O.A.C. 335, 201 C.C.C. (3d) 363 (Ont. C.A.); R. v. Forsythe, (SCC), [1980] 2 S.C.R. 268; R. v. Skogman, (SCC), [1984] 2 S.C.R. 93; R. v. Russell, 2001 SCC 53 , [2001] 2 S.C.R. 804; R. v. LeBlanc, 2009 NBCA 84; R.v. Krakowski (1983), (ON CA), 4 C.C.C. (3d) 188, 146 D.L.R. (3d) 760 (Ont. C.A.); R. v.

Harrington (2004), (ON CA), 181 O.A.C. 395, 60 W.C.B. (2d) 341 (Ont. C.A.); R. v. Find, 2001 SCC 32 , [2001] 1 S.C.R. 863; R. v.Zundel (1987), (ON CA), 18 O.A.C. 161, 35 D.L.R. (4th) 338 (Ont. S.C. (C.A.)); R. v. Spence, 2005 SCC 71; UnitedStates v. Saad (2004), (ON CA), 183 C.C.C. (3d) 97, 184 O.A.C. 282 (Ont. C.A.); Pfizer Co. v. Deputy Minister ofNational Revenue (Customs & Excise), (SCC), [1977] 1 S.C.R. 456; R. v. Balen, 2012 ONSC 2209; R. v. H. (C.D.),2015 ONCA 102 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46 JOURNAL

ARTICLE CONSIDERED: "Judicial Notice" (1943-1944), 57 Harv. L. Rev. 269, E. M. Morgan. REASONS FOR JUDGMENT Certiorari GOODRIDGE, J: INTRODUCTION [1] Shane Leonard and Thomas Snow filed separate applications seeking an Order in the nature of Certiorari quashing theircommittals to trial on charges relating to the trafficking in oxycodone. The witnesses at the preliminary inquiry all spoke of trafficking inPercocet, and did not make the link between Percocet and oxycodone.

The Applicants say that the absence of evidence linking Percocetto oxycodone should have resulted in a discharge, and that the Judge exceeded his jurisdiction by taking judicial notice that Percocetcontains oxycodone. This was an excess of jurisdiction, argued the Applicants, for two reasons: (1) the Judge did internet research afterthe hearing and then decided to take judicial notice of the fact, and (2) the Judge relied on the fact without providing the Applicants withan opportunity to challenge the substance of the fact.

BACKGROUND [2] At the close of evidence the presiding Judge at the preliminary inquiry advised counsel that he knew Percocet was a brandname for oxycodone, but he did not know whether he had authority to take judicial notice of that fact.

Counsel were given an opportunityto make submissions as to the appropriateness of the Judge taking judicial notice in the circumstances. [3] Crown counsel argued that the Judge had authority to take judicial notice that Percocet contains oxycodone because it was afact capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy. Crown counselreferred to paragraph 54 of R. v.

Williams, (SCC), [1998] 1 S.C.R. 1128, where the court listed the two criteria wherejudicial notice of a fact is permitted without proof: …Judicial notice is the acceptance of a fact without proof. It applies to two kinds of facts: (1) facts which are so notorious as not be thesubject of dispute among reasonable persons; and (2) facts that are capable of immediate and accurate demonstration by resorting to

readily accessible sources of indisputable accuracy: … [4] Counsel for the Applicants argued that it would be unfair to take judicial notice because proof of oxycodone is an essentialelement of the offences, and therefore essential to committal. [5] After the hearing the Judge accessed internet sources which he considered to be of indisputable accuracy, and verified thatPercocet contained oxycodone. He took judicial notice of that fact and committed the Applicants to trial.

In his reasons, found at page269 to 270 of the transcript, the Judge stated: The [internet] search directed me to multiple websites that are indisputable for their accuracy: namely, the Food and Drug Administrationsite from the United States, the Health Canada site, the New England Journal of Medicine, the Mayo Clinic. In each case, Percocet isconfirmed to be the brand name of an opioid that contains oxycodone along with acetaminophen.

When I combine these findings fromthose four sources together with the wording of section 2(2) of the CDSA, that a reference to a controlled substance includes a referenceto any substance that contains a controlled substance, I am satisfied that these are indisputably accurate sources. Under suchcircumstances, I find that I am permitted to take judicial notice of the fact that Percocet contains oxycodone. Given my earlier findingswith respect to the evidence of trafficking in Percocet, I find there is some evidence upon which a properly instructed jury could find thetwo accused guilty of trafficking in oxycodone.

Pursuant to section 548(2), they will be committed to stand trial on that charge. LAW [6] The scope of review of a committal flowing from a preliminary inquiry is narrow. The reviewing court may only interferewhere there has been a loss or excess of jurisdiction. Jurisdictional error typically arises where a preliminary Judge commits an accusedto stand trial in the absence of any evidence on an essential element of the offence (see paragraph 10 of R. v. Papadopoulos (2005), (ON CA), 196 O.A.C. 335, 201 C.C.C. (3d) 363 (Ont. C.A.)). An error of law made within the scope of the Judge’sjurisdiction will not suffice.

Jurisdictional error may also arise where there has been a denial of natural justice (see R. v. Forsythe, (SCC), [1980] 2 S.C.R. 268 at page 229, R. v. Skogman, (SCC), [1984] 2 S.C.R. 93 at page 100, and R. v.Russell, 2001 SCC 53 , [2001] 2 S.C.R. 804. This narrow scope of review reflects the limited purpose of the preliminaryinquiry, which is to serve as a screening process and not to provide a forum for litigating the merits of the case (see paragraph 20 ofRussell).

Even when jurisdictional error is found, certiorari is a discretionary remedy that may be refused (see paragraph 13 of R. v.LeBlanc, 2009 NBCA 84, R. v. Krakowski (1983), (ON CA), 4 C.C.C. (3d) 188, 146 D.L.R. (3d) 760 (Ont. C.A.),Papadopoulos, and R. v. Harrington (2004), (ON CA), 181 O.A.C. 395, 60 W.C.B. (2d) 341 (Ont. C.A.) atparagraphs 11 and 12).

The inherent jurisdiction of superior courts empowers the reviewing Judge to exercise a discretion to refuse toquash a committal where the accused has suffered no prejudice, even where there has been a denial of natural justice (see paragraph 19and 20 of Papadopoulos). BURDEN OF PROOF [7] The Applicants bear the burden of proof to establish that the preliminary inquiry Judge either exceeded his jurisdiction orviolated their right to natural justice in committing them to trial. ISSUE [8] In the written submissions of the Applicants the issue is stated as a question: Has the preliminary inquiry Judge erred in the

interpretation and application of legal principles relating to taking judicial notice of thefact that Percocet contains oxycodone? [9] A response to this question requires consideration of the areas of permissible judicial notice, and consideration of theprinciples of natural justice (procedural fairness) in the context of judicial notice. I will deal first with judicial notice, and then withnatural justice. discussion JUDICIAL NOTICE [10] The test of judicial notice adopted in Canada is set out in R. v.

Find, 2001 SCC 32 , [2001] 1 S.C.R. 863 at paragraph48, per McLachlin C.J.: …Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judiciallynoticed are not proved by evidence under oath. Nor are they tested by cross-examination.

Therefore, the threshold for judicial notice isstrict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject ofdebate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources ofindisputable accuracy. [11] This formulation was originally put forward by Professor E. M. Morgan in "Judicial Notice" (1943-1944), 57 Harv. L. Rev.269.

The two branches of the formulation are often referred to in court decisions as the Morgan criteria, obviously in reference to theprofessor who came up with the formulation.

[12] Percocet is a brand name for a prescription pain medication. All strengths of Percocet contain oxycodone. If there is nooxycodone content, then it is not Percocet. The preliminary inquiry Judge verified this fact and found that it was “capable of immediateand accurate demonstration by resort to readily accessible sources of indisputable accuracy”. The Judge correctly stated and applied theMorgan criteria in taking judicial notice. In the circumstances, his decision to take judicial notice that Percocet contains oxycodone (onits own) is not reviewable on certiorari.

He had authority --- jurisdiction --- to take judicial notice of that fact without proof or evidence.In R. v. Zundel (1987), (ON CA), 18 O.A.C. 161, 35 D.L.R. (4th) 338 the Ontario Court of Appeal stated that trialJudges have a wide discretion as to matters of which they may take judicial notice and reviewing courts should not intervene. [13] If a Judge is wrong in the

interpretation and application of the rules of evidence then, generally, it is a legal error. In my view,the same logic applies to judicial notice. Even if the preliminary inquiry Judge was wrong in his

interpretation and application of theMorgan criteria then, generally, it is a legal error and not reviewable on certiorari. An error of law made within the scope of the Judge’sjurisdiction will not suffice on a certiorari application (see Russell). [14] Mr. Lavers suggested that this fact, that Percocet contains oxycodone, was an essential element of the crime, a fact that relatesdirectly to the adjudication of guilt or innocence. He suggested that stricter standards may apply before judicial notice is appropriate. InR. v. Spence, 2005 SCC 71, the Supreme Court established that there is not a stricter standard.

If either of the Morgan criteria are met,then judicial notice is permitted and that ends the matter. At paragraph 61, Binnie, J. writing for a unanimous bench, stated: 61 …the Court will start with the Morgan criteria, whatever may be the type of "fact" that is sought to be judicially noticed. The Morgancriteria represent the gold standard and, if satisfied, the "fact" will be judicially noticed, and that is the end of the matter. [15] Mr. Lavers referred to United States v. Saad (2004), (ON CA), 183 C.C.C. (3d) 97, 184 O.A.C. 282 (Ont.C.A.), in his written and oral submissions.

In that case, the Court set aside a committal on a charge of trafficking in N-methyl-3,4-methylenedioxyamphetamine (N,alpha-dimethyl-1,3-benzodioxole-5-ethanamine). The witnesses referred only to ecstasy, but not thedrug or the chemical concoction upon which the charge was based. The Judge at the initial hearing did not take judicial notice to linkecstasy to the drug listed in the charge, and did not discuss judicial notice.

She was aware of the gap in the evidence presented, but stillcommitted the accused because ecstasy was also listed in the schedules to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.The problem was that the accused was not charged with trafficking in ecstasy. The Judge committed the accused on the charge specifiedin absence of evidence, and in the absence of judicial notice, of an essential element of the offence. That was not a legal error but ratherwas an excess of jurisdiction. The preliminary inquiry Judge that I am reviewing did not commit such a jurisdictional error.

He hadauthority, i.e. the jurisdiction, to take judicial notice, and he did so. Saad was a jurisdictional error, and reviewable; and Saad isdistinguishable on that basis. [16] There are aspects of Saad that indirectly endorse the steps taken by the preliminary inquiry Judge whose decision I amreviewing. Rosenberg, J.A. (writing for a unanimous panel in Saad) discussed the Morgan criteria for judicial notice, and evencontemplated filling the gap himself at the appellate level, and taking judicial notice.

He did internet research, and mentioned in thedecision that he had done so to assess whether the fact was capable of meeting the Morgan criteria. His actions suggest that it would notbe a prohibited course of action for a Judge to refer to the internet after the hearing to assess whether a fact is capable of immediate andaccurate demonstration by resorting to readily accessible sources of indisputable accuracy. Rosenberg, J.A. determined that the fact (thelink between ecstasy and the drug listed in the charge) did not meet the Morgan criteria for judicial notice.

It was not a fact capable ofimmediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. BREACH OF NATURAL JUSTICE [17] The issue of an alleged breach of natural justice is a separate matter, but interwoven with the judicial notice issue. [18] It is not disputed that a breach of natural justice would amount to a jurisdictional error by the preliminary inquiry Judge.

TheApplicants argue that there was a breach of natural justice because the Judge took judicial notice of an essential element of the offence(stepped into the shoes of the prosecutor), and did not grant the Applicants the chance to make further submissions following judicialnotice. The Applicants say the Judge should not have taken judicial notice of this essential element of the offence.

If judicial notice ispermitted then the Applicants argue that they should have been granted an additional opportunity to make submissions, and even callfresh evidence, before a decision was rendered. [19] I reject these arguments and find that there was no breach of natural justice. If I am wrong, then I exercise my discretion anddecline to quash the committal. In my view, the Applicants suffered no prejudice because they had the opportunity to make submissionson judicial notice of this fact, and nothing would have been gained had they been granted a second opportunity after judicial notice wastaken.

Percocet is the brand name for a prescription drug that contains oxycodone, and it is not possible to produce reliable evidence tosay otherwise. [20] The Judge identified the issue and invited submissions from both counsel on whether or not it was permissible for him to takejudicial notice that Percocet contained oxycodone. Both counsel made submissions on that point. The Judge referred to thosesubmissions in his reasons. [21] The opportunity to make further submissions, or present fresh evidence, after judicial notice was taken, was not offered.

Assuggested above, if that amounted to a breach of natural justice, it is not a breach that caused any prejudice to the Applicants. It wouldhave been an empty opportunity because no evidence can be produced to refute the fact. If the matter was remitted back to thecommitting Judge for reconsideration of the issue of committal after full submissions and evidence on whether Percocet containedoxycodone, nothing would change. [22] I will address a few of the authorities referred to by counsel for the Applicants during oral submissions.

[23] Mr. Lavers referred to page 463 of Pfizer Co. v. Deputy Minister of National Revenue(Customs & Excise), (SCC), [1977] 1 S.C.R. 456, to argue that it is contrary tothe rules of natural justice to rely on information obtained after the hearing was completedwithout disclosing it to the parties and giving them an opportunity to meet it.

In my view Pfizeris distinguishable because the preliminary inquiry Judge in our case disclosed to the parties whathe was contemplating doing, and gave them an opportunity to address it, and address whether ornot the fact fell within the Morgan criteria for judicial notice. [24] Mr. Lavers also referred to R. v. Balen, 2012 ONSC 2209, to argue that it is contraryto the rules of natural justice to gather evidence through internet research after the court hearing.In Balen, the

summary appeal Judge set aside a conviction and ordered a new trial, in part,because the trial Judge gathered evidence through internet research after the court hearing. It wasnot a case of judicial notice and is therefore distinguishable. The trial Judge had googledcommercial information on the manufacturer’s website regarding identifying features on a tracksuit. She used that information in assessing reliability of an eye witness who had describedsomeone wearing that specific type clothing. The facts are not comparable. In obitercommentary, the

summary appeal Judge (Hill, J.) appears to endorse the right of a Judge toconduct internet research for purposes of assessing whether a fact meets the Morgan criteria. Atparagraph 61 he acknowledged that, in some circumstances, Judges may access the internet, andmay utilize the google search engines, for purposes of judicial notice. But going to a clothingmanufacturer’s home page to decide on the reliability of the observation of an eye witness wasnot one of those circumstances. [25] Lastly, Mr. Lavers mentioned R. v.

H. (C.D.), 2015 ONCA 102, to argue that it iscontrary to the rules of natural justice to gather evidence through internet research after the courthearing. H. (C.D.) was not a case about judicial notice, but rather, was a case about bias and lackof impartiality. It is distinguishable on that basis. After the trial, but before decision, the trialJudge in H. (C.D.) created a fake profile on match.com, then accessed a website that containedpersonal information of the complainant. After viewing the site, he told a court officer that therewas enough information on the site for defence counsel to ‘hang the victim’.

The Ontario Courtof Appeal set aside the acquittals on the basis of apprehension of bias and lack of impartiality,and ordered a new trial. CONCLUSION [26] The Applicants have not met their burden of proof, and have not established that thepreliminary inquiry Judge exceeded his jurisdiction or violated the rules of natural justice incommitting them to trial. If there was any breach of natural justice, then I exercise my discretionand decline to quash the committals. The application for certiorari is dismissed. _____________________________ WILLIAM H. GOODRIDGE Justice