R. v. Hatt, 2011 ONCJ 455

Certificate No. 5704205A Citation: R. v. Hatt , 2011 ONCJ 455 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES COURT HER MAJESTY THE QUEEN v. KEVIN N. HATT P R O C E E D I N G S A T T R I A L BEFORE JUSTICE OF THE PEACE W. ROJEK on August 9 th , 2011 at GUELPH, Ontario

APPEARANCES: V. Ballah Provincial Prosecutor A. Sanderson Agent for Kevin Hatt R U L I N G ROJEK, J.P. (Orally): The situation before this court is commenced by the Notice of Constitutional Question and Notice of Application which is dated the 22 nd day of July—actually, 13 th day of July, 2011. It refers to the matter of R. v. Kevin Hatt , H-A-T-T, and the Certificate of Offence Number 5704205A. That Certificate of Offence is alleging an offence of speeding which, allegedly, had been committed on the 10 th day of March, 2011.

The defendant, upon being served with the Offence Notice, had retained the X-Copper company to represent him as paralegal in this case. The initial trial date had been set for the 14 th day of June, 2011. It was set according to the Provincial Offences Act part one proceeding administratively. Then it has been moved to today’s date by the way of application by the way of motion. That motion, I understand, was not opposed and it was granted on June 6 th , 2011.

On May 6 th , 2011 the local prosecution office had distributed to some agents who are, I understand, frequently representing defendants in our court location, a list of new procedures with respect to the radar and laser devices used by the local police enforcement agencies. That list has been filed as Exhibit Number One and contains a number of devices. And also informed, in this case, Ms.

Sanderson’s agency, that as of February 28 th , 2011, according to the letter dated May 6 th , 2011 directed to X-Copper at 1315 Bishop Street North, Unit 150, Cambridge, Ontario, reads as follows in the second paragraph: “We have learned that several of the manuals you received in March of 2011 are no longer in use and that several more are being replaced with new manuals being used by Wellington OPP officers for all charges laid after February 28 th , 2011.” The allegation date is 10 th day of March, 2011 which causes me to believe that there is approximately 10 days gap in between the change of manuals and the allegations which are subject of this matter.

This letter also requested that the addressee discard the previous set of testing procedures. Subsequently to that there has been a request for additional disclosure and additional disclosure was meant to obtain the previous copy of manual; I understand the one which officer’s would be using prior to February 28 th , 2011. During proceedings before the court by the way of motion, I think I can safely establish that as the result of further communication between the prosecution office and the defendant, it was indicated which particular radar device had been used by the officer investigating that event.

That has been provided to the defence by the form of letter dated 8 th day of June, 2011 which is detailing which manuals were used to which devices and the device in question was the—I’ll quote from the letter of June 8 th at almost the end pages. It starts with notation: “HATT, Kevin – NCD 9 August Trial,” which I don’t know what “NCD” means but I don’t think it interests me at this time. “The officer has indicated that the device used is a ‘Decatur Genesis II Directional’ with ‘serial number 09-322.’ This is a Genesis II Select Directional radar, OPP number 09-322.

Speed enforcement occurred on 10 March of 2011. The officer was therefore

using the testing procedures contained in the Genesis II Select Directional User’s and Installation Manual (Canada Variant Revision25/August/2010) previously provided.” I think that during proceedings before me today we established that this was the individual device which was used in the allegations. There is indication that 10 days before there was a change in manuals how to operate that radar device. In ruling, which I’m going tomake in a moment, I will follow; I think this is a general leading case of R. v.

Stinchcombe (1991) (SCC), 3 S.C.R. 326,Section 7 of the Charter of Rights which guarantees every accused right to defend and to respond to the charges. And that is obviouslyvery tightly combined with the right to disclosure. The case which I’m also looking at which was provided to me in the materials filed by the applicant is Reybroek, R-E-Y-B-R-O-E-K.

Judge Babcock states: “The Crown must disclose everything in its possession that is relevant to the charges; the Crown has no duty todisclose that which is clearly irrelevant; and that the Crown cannot disclose what it doesn’t have.” In the next following cases presented to me by the applicant, R. v.

C.(M.H.) (1989) (BC CA), 46 C.C.C. (3d) 142 at p.155, 6 W.C.B. (2d) 300 (B.C.C.A.), Judge McEachern stated: “There is a general duty on the part of the Crown to disclose all material itproposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.” The question before me really boils down to whether or not that older version of manual is relevant or irrelevant to the case. Now, it’snot up to me, and I believe it’s not up to the prosecution, to tell the defence how to run their defence.

The change in manuals appears tobe recently implemented and I think that in those circumstances the older manual may be relevant to the case. For these reasons I am satisfied that remedy under

Section 24 is justified in this case. Now, the question which I have to address is whattype of remedy I would apply to this case. I think to stay proceedings under

Section 24 of the Charter of Rights, the failure to disclose would have to be dramatically greater thanthe one presented before me. I would have to be satisfied that there was some kind of intention, either direct or indirect, to mislead thedefence to put the defence in the situation when they would be ambushed, in lack of better word, at the time of trial. This is clearly notthe case. It’s clearly not the case because, first of all, the defending agency had that older manual in their possession.

And, although Ibelieve they would destroy it as requested by the party who presented that manual to them, they could request an exemption from thatrequest. I don’t believe they did. The question whether or not the disclosure had been completed and issue of disclosure has been raised at the motion to adjourn the case,it’s irrelevant. It seems that there was a communication in progress and the defending agency had the right to expect that this issue willbe resolved the way they expected it to be.

Coming back to the lack of willingness or lack of direct or indirect intention to mislead the defending agency, it’s also found in the letter dated May 6th which tells at the bottom: “Complete manuals are always available for you to review in our office by appointment.” The proper remedy in this case therefore will be definitely not to stay proceedings but to simply order the prosecuting office in this case to provide the older version of the manual which was in use prior to February 28th, 2011 with respect to Decatur Genesis II Directionalwith the serial number 09-322.

In coming up to this conclusion of the case I also relied on the cases provided to me by defence, or applicant in this case, R. v. Wilson(1994) (ON CA), 68 O.A.C. 131 (C.A.) and R. v. Dixon (SCC), [1998] 1 S.C.R. 244. How long time the prosecutorial office will be needing to provide a copy of the manual?

FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Tania Staniscia, certify that this document is a true and accurate transcript of the recording of R. v. Hatt in the Ontario Court of Justice (Provincial Offences) held at 59 Carden Street, Guelph, Ontario taken from the digital recording on August 9 th , 2011 which has been certified in Form 1. August 16 th , 2011 ________________________ Tania Staniscia

Transcript Ordered: .....August 11 th , 2011................... Transcript Completed: ....August 16 th , 2011................... Ordering Party Notified:..August 16 th , 2011...................