Ontario (Ministry of Labour) v. Ontario Power Generation, 2016 ONCJ 299

DATE: 2016·05·20 CITATION: Ontario (Ministry of Labour) v. Ontario Power Generation, 2016 ONCJ 299 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES APPEAL BETWEEN: THE MINISTRY OF LABOUR — AND — ONTARIO POWER GENERATION Before Justice J.F.

Adamson Heard on April 28, 2016 Reasons for Judgment released on May 20, 2016 David McCaskill ..................................................................................... for the Ministry of Labour Jeremy Warning ................................................................................ for Ontario Power Generation ADAMSON J.: [1] This judgment deals with a request by the parties for a ruling on a preliminary matter of procedure which is potentiallydispositive of the entire appeal.

At issue is whether the Crown may use a sentence appeal to challenge an interlocutory ruling made at atrial and applied on sentence, notwithstanding the Crown’s participation in a guilty plea on the same matter. THE FACTS [2] Ontario Power Generation (O.P.G.) was charged with two offences contrary to the Occupational Health and Safety Act occurring on September 5th, 2012. It is common ground that convictions on both would have offended the rule in R. v. Kienapple (SCC), 1975 1 S.C.R. 729. Also charged was an O.P.G. contractor named Robert France.

Part of the allegation, though notpart of the gravamen of the offences, was that a worker was injured by an electrical shock as a result of the infractions. The matterproceeded to trial before a Justice of the Peace and commenced with a motion by O.P.G. and Mr. France to exclude evidence as havingbeen illegally obtained. While Mr. France was unsuccessful, O.P.G. received a ruling which excluded significant evidence, including theviva voce testimony of the apparently injured worker. Notwithstanding the ruling, Crown counsel still felt that there was a reasonableprospect of obtaining a conviction.

Apparently, O.P.G. felt the same way as they entered into resolution discussions with the Crown. [3] The result was that on May 11, 2015 a plea was entered to one count while the other, and the count against Mr. France,were withdrawn. The plea was based on an agreed statement of facts which did not include that a worker had been injured. My reviewof the transcripts confirms that both parties understood that the Crown would attempt to lead evidence of that latter fact as an aggravatoron sentence. It appeared to be understood that OPG would oppose that application.

At the sentence hearing the worker was present andCrown counsel asked the Justice of the Peace, by way of “clarification”, if her ruling excluding his evidence would cover that hearing aswell? When she ruled that it did no one seemed surprised. Presumably OPG were expecting this result and had factored it into theirdecision to plead guilty. The Crown was ready with another witness and hospital records through which they attempted to prove theinjury. Both sides apparently came to court prepared for argument as to the use that could be made of this potential hearsay evidence.

Those arguments were made, the Justice of the Peace ruled against the Ministry of Labour on the evidentiary point and ultimatelyimposed the penalty suggested by O.P.G. [4] The Ministry of Labour now appeals against the sentence imposed on the basis that the Charter ruling that excluded theinjury to the worker as an aggravating factor on sentence was wrong. The Ministry is candid with respect to their reasons for appealing.

They recognize that the ruling was made as part of the conviction phase of the matter and acknowledge that their motivation is, at least inpart, to eliminate that ruling as a potential precedent in future trials. They’re rightfully concerned that non-state actors should not bebarred from giving viva voce evidence either at trial or sentence about events which injured them.

The Crown argues that there must bean avenue to appeal such a decision and that this is it. [5] OPG counters with the argument that a sentence appeal cannot be used to overturn an interlocutory ruling particularlywhere there has been a guilty plea. If the Crown wanted to appeal the Charter ruling it should not have participated in the plea. It shouldhave followed the time honoured route of refusing to call more evidence, thereby inviting an acquittal, so as to preserve their right toappeal.

O.P.G. asserts that a plea represents not only a solemn bargain arrived at by informed parties, but also an unconditionalresolution of the issues for both sides. It also points out that to permit the Crown to proceed would create the anomalous result of

evidence that had been ruled to be unconstitutionally obtained being both admissible and inadmissible in the same proceedings. Logically, evidence either brings the administration of justice into disrepute or it doesn’t, it should not do both. The argument continues,that as the Court has the power to control its own processes, prevention of such a result falls under the doctrine of preventing an abuse ofprocess. [6] That trial rulings are binding during the sentencing phase is well settled law. The classic example is R. v. Rousseau1990 O.J.

No. 291 where the Crown, having lost the exceed .08 and two counts of impaired bodily harm on an unfavourable Charterruling, sought to introduce the defendant’s blood alcohol level as an aggravating factor on sentence when he was ultimately convicted ofdangerous driving causing bodily harm. The Court there held that trial and sentencing are two phases of one process and thatinconsistent rulings in the two different phases were therefore impermissible.

O.P.G. argues here that the standard should be no differenton a sentence appeal. [7] The issue of the effect of a plea of guilty was the subject of appellate review in R. v. Fegan (ONCA), 1993 O.J. No. 733 ONCA. There Justice Finlayson held that the accused, who had pled guilty after an unfavourable ruling on theevidence, could not appeal his conviction.

The argument that the plea could be conditional on a higher Court upholding the validity ofthe original ruling was soundly rejected. [8] Perhaps the leading case giving guidance to prosecutors on their ability to appeal interlocutory rulings is U.S. v.Fafalios 2012 ONCA 365. In this extradition case the judge ordered disclosure of certain documents over the objection of the Crown. Those objections had been based both on relevance and the potential of the documents to hamper international relations.

In the face ofthe adverse ruling, the Crown invited the judge to either stay proceedings or discharge the accused so that they could proceed with anappeal. The judge duly discharged and the Crown appealed. The appeal was dismissed on the basis that it was impermissible for theCrown to appeal against an interlocutory order in those circumstances. The Crown in Fafalios was faced with two options. They couldcontinue with the trial, which would involve complying with the disclosure order and, when proceedings were complete, launch theirappeal. The other course was to act as they did and halt proceedings.

The Court ruled that the latter course was acceptable only wherethere was no reasonable alternative. At paragraph 44 of the decision, Epstein, J. gave two examples of when that might be true. He heldthat the Crown should be permitted to halt proceedings where: (

a) The effect of the interlocutory ruling would be to exclude evidence sufficiently important to the prosecution that the Crown is unableto continue, or (

b) That compliance with the offending ruling would imperil an interest that a Court would deem worthy of protection. [9] In Fafalios the Court found the Crown’s argument about the disclosure hampering international relations to beunpersuasive. The conclusion was that the Crown was in a position to carry on and had a duty to do so. [10] The issue arose again in a slightly different way in R. v.

Tingley 2015 NBCA 51 where Justice Richard of the NewBrunswick Court of Appeal was confronted with a Crown appeal of several acquittals that had resulted when the Crown had opted to callno evidence in the face of an unfavourable ruling. There the Crown had unsuccessfully sought the trial Judge’s recusal. Justice Richardfollowed Fafalios and ruled that the Crown, being able to continue, and not needing to protect any vulnerable interests, was abusing theprocess by halting the proceedings to permit the appeal.

The appeal was therefore dismissed. [11] The Ministry of Labour’s argument here is that the effect of Fafalios and Tingley is to remove the option of haltingproceedings as a counter to O.P.G.’s plea. They argue that they could not have refused to call evidence in support of the plea (andthereby invite on acquittal which they could appeal from) because they had the ability to carry on (a reasonable prospect of conviction)and there was no special protected interest at play.

They argued that they should therefore not be barred from appealing. [12] It is true that in this case the Crown was not in danger of imperiling anyone’s vulnerable interest by proceeding. Thesecond part of the test is more problematic. It is true that the evidence excluded was not part of the gravamen of the offences. However,that the Crown considered the injury to the worker to be a vital aspect of their case is demonstrated by their arguments in favour of itsadmissibility both in the conviction and sentence phases of the trial. Its importance is also underscored by the very fact of this appeal.

But is there also not a third factor at play here, not contemplated by Fafalios or Tingley, that should be part of the analysis of thequestion of whether there was a reasonable alternative to the course undertaken by the Crown? [13] Had O.P.G. not pled guilty the trial would have continued and an appeal of the ruling could have occurred in the normalcourse. The plea of guilty effectively closed off that option for the Crown. It would have been evident to all at the time that the pleawas proffered that the Crown would be left in a procedural corner.

In that situation the option of refusing to participate in the plea,calling no evidence and inviting an acquittal so as to preserve the right of appeal seems a sensible response. This situation is clearlydistinguished from the Tingley scenario where the Crown had suffered no exclusion of evidence but simply disagreed with the Judge’sruling on the effect of his own conduct in the pre-trial motions. There the reasonable alternative to bringing proceedings to a screechinghalt was to carry on.

In the case at bar, the Crown was prevented from carrying on by the plea. [14] I am not persuaded by the Crown’s argument that concluding the matter in accordance with the plea was required in thecircumstances. While the Crown has a duty to ensure the orderly progress of matters through the Courts, it also has the duty to putforward those facts it perceives to be in the public interest and to preserve rights of appeal through procedural means where appropriate.

Neither participating in the plea as occurred here, or refusing to call the evidence to support it, would result in a substantial variance inthe court time used or other resources expended. Halting proceedings in that fashion seems to be an entirely reasonable alternative toparticipating in the plea and fettering the prosecutions right to appeal. [15] While I recognize the force of the policy argument that this result could prevent a miscarriage of justice being rectified, Ialso see that the other justifications for the rule against appeals of interlocutory rulings have some sway here.

The principles underlyingthe result in Fafalios and not the examples cited therein are what is important. The Crown should not have more procedural rights than

the accused. The accused could not attach the condition to his plea that it was dependent on the ruling against him being upheld (see Fegan ). Likewise the Crown should not be participating in a process by which facts are agreed to and charges are withdrawn, conditional upon a ruling being upheld. O.P.G. entered the plea of guilty knowing that the state of law was that they were thereby forestalling the Crown’s potential appeal. The Crown also knew this and actively participated notwithstanding. This should have been expected to be a final resolution of the matter.

To allow the Crown to proceed to appeal the original ruling through a sentence appeal offends that expectation of finality. It would place O.P.G. in a position where they are potentially prejudiced by the fact of their plea and any revisitation of the issue of their guilt. [ 16 ] The Ministry of Labour’s proposal would also open the door to the potential for inconsistent verdicts in the same matter. Following Rousseau 1990 O.J. No. 291 pg 4, it would: “Mean that you have the anomaly of constitutionally tainted evidence being both admissible and inadmissible in the same proceedings.

That the admission of the same evidence against the same accused in the same proceedings could simultaneously bring and not bring the administration of justice into disrepute represents a twist in logic out of harmony with the Charter. Such judicial hair splitting would garble the clear message of the inviolability of rights and freedoms which the Charter was intended to convey. It is also repugnant to common sense.” [ 17 ] Having found that there was a reasonable alternative available to the Crown I do find that I must act to prevent such an anomaly.

My duty to preserve the consistency of the process requires me to prevent this abuse of it. The appeal is therefore dismissed. [ 18 ] I would also like to take a moment to commend both counsel for their thoughtful, thorough and collegial handling of this matter. I note that I have some sympathy for the situation of the Crown here. This is a procedural ruling and I recognize that its affect may well be the end of the matter. However, if it is of any comfort to the Crown, it seems to me that the original ruling in question was extremely vulnerable to appeal if approached properly.

Nothing in this ruling is intended to endorse the ruling at trial or to denigrate from the ability of injured workers to give evidence in future cases which the Crown assures me is their paramount concern. Released: May 20, 2016 Signed: “Justice Adamson”