R. v. Nichols, 2011 ONCJ 507

INFORMATION NO. 070091, 060064, 070092 DATE: 2011-05-05 (Cayuga) Citation: R. v. Nichols, 2011 ONCJ 507 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent— AND — GARY NICHOLS and NICHOLS GRAVEL LIMITED Appellants/Applicants Before Justice D.A. Harris Heard April 4, 2011 Reasons for Ruling released on May 5, 2011 P. Osier .............................................................. for the Appellants/Applicants P.

Gonsalves ....................................................................... for the Respondent REASONS FOR RULING HARRIS J.: [1] In 2007, the Applicants were charged with multiple counts of operating a quarry without a licence between 2004 and 2006,contrary to s. 57(1) of the Aggregate Resources Act. Near the outset of the proceedings, on March 30, 2009, the presiding Justice of thePeace made a ruling dismissing an application to exclude search warrant evidence pursuant to the Canadian Charter of Rights andFreedoms.

Both Applicants were ultimately convicted of several offences and fines and surcharges totalling $502,500 were imposed onDecember 9, 2009. The Applicants appealed these convictions and sentences. [2] The Applicants obtained transcripts of all of the proceedings. Certain portions of the proceedings have been transcribed morethan once. The Applicants allege that there are differences between these various transcripts and have therefore brought an applicationfor: 1. A Declaration that the transcripts of evidence taken at trial in this case are not accurate enough to be relied uponfor appeal purposes. 2.

An Order requiring the transcripts to be re-transcribed by a new court reporter at no cost to the appellants. 3. For a viva voce inquiry as to why, and on what authority, the transcripts were in

part changed at the direction ofthe trial Justice from the original March 30, 2009 decision (re: dismissal of application to quash search warrant) to what is now on filewith the court with no concluding decision. 4.

For a stay of proceedings pending production of fresh transcripts to allow an inquiry into why and who wasresponsible for changing the March 30, 2009, decision transcript as tape recorded at the oral decision of that date, to ensure that therewas no attempt to defeat justice through evidence tampering. [3] On April 4, 2011, I dismissed this application without prejudice to the Applicants’ right to argue the sufficiency of thetranscript as a ground of appeal. I reserved the issue of costs to be determined at the conclusion of the appeal. I also indicated that Iwould provide my reasons at a later date.

These are those reasons. [4] In R. v. Hayes, (SCC), [1989] S.C.J. No. 1 (S.C.C.) L’Heureux-Dubé J. wrote at para. 10 that:

A new trial need not be ordered for every gap in a transcript. As a general rule, there must be a serious possibility that there was an errorin the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal. [5] In R. v. Dobis, (ON CA), [2002] O.J. No. 646 (Ont. C.A.) MacPherson J.A. wrote at para. 21 that: By parity of reasoning, a new sentence hearing need not be ordered for every gap in a transcript, especially where, as in Hayes and in thisappeal, the gap is accidental.

Nor should an appeal court refuse outright to hear an appeal solely because of a missing transcript. Thequestion should be: is the respondent prejudiced on this appeal because of the missing transcript? [6] In R. v. Hannemann, [2001] O.J. No. 839 (Ont.

S.C.J.) Hill J. explained at para. 167: The approach exhibited by the modern jurisprudence frequently involves the appeal court acquiring extrinsic evidence relating tothe subject of what is missing from the transcript, whether by the medium of a trial judge's report … or by order where the courtconsiders it "in the interests of justice [to] order the production of any writing, exhibit, or other thing connected with the proceedings" …or otherwise by the receipt of fresh evidence, for example, the notes of the trial judge. …..

Other remedial measures by appellate courtsinclude reference to summaries of witnesses' testimony in the jury charge to determine the content of the testimony of witnesses forwhom no transcript exists, … ordering a proper certification of a transcript of trial proceedings, ….. or acceptance of a transcript certifiedother than by the court reporter who took the evidence at trial. [7] In the case before me however, nobody has suggested what if anything might be missing from the transcript. [8] The Applicants have conceded that the transcripts ordered December 11, 2010, are sufficient for the appeal except for theportion relating to the March 30, 2009, Charter ruling. [9] That material is covered in the other transcripts. [10] The complaint seems to be that since the various transcripts are not the same in all respects, there might be somethingmissing or incorrectly transcribed.

Counsel for both the Applicants and the Respondent have had an opportunity however to listen to thetapes of the proceedings and neither has pointed out to me that any such deficiencies exist. [11] So, assuming for the moment that I have the jurisdiction to make the orders sought by the Applicants (an issue that I willleave unresolved in this case), I am not satisfied to any degree that circumstances are such that I ought to make these orders. [12] Accordingly, the application is dismissed.

As I stated before, this is done without prejudice to the Applicants’ right toargue the sufficiency of the transcript as a ground of appeal. [13] I reserve the issue of costs, as requested by the Respondent, to be determined at the conclusion of the appeal. Released: May 5, 2011 Signed: ________________________ Justice D.A. Harris