R. v. McGregor, 2015 ONCJ 514

Information no. 3111-998-13-7450-00 Citation: R. v. McGregor , 2015 ONCJ 514 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. LESLIE MCGREGOR R U L I N G BEFORE THE HONOURABLE JUSTICE STRIBOPOULOS on July 8, 2015, at BRAMPTON, Ontario APPEARANCES: E. Beaton Counsel for the Crown D. Lent Counsel for Leslie McGregor ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S

ENTERED ON PAGE Ruling 1 Legend [sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error, but is a spoken error. (ph) – Indicates preceding word has been spelled phonetically as pronounced and is not a typographical error, or is due to the deficiencies in the annotations made by the in-Court reporter, or due to the quality of the audio recording or in-Court equipment deficiencies and do not represent typographical errors. Transcript Ordered:. . . . . . . . . . . . . July 30, 2015 Transcript Completed:. . . . . . . . . . . .

August 31, 2015 Approved by Stribopoulos, J.:. . . . . . . . September 9, 2015 Ordering Party Notified: . . . . . . . . . . September 10, 2015 WEDNESDAY, JULY 8, 2015 R U L I N G STRIBOPOULOS, J.: (Orally) Ms. Beaton, on behalf of the Crown, has brought an application to recall Constable Bell who previously testified as a Crown witness on September 22 nd , 2014. A few words are necessary to put the Crown’s application in context. Prior to the application I was in the midst of hearing final submissions from defence counsel, Mr. Lent.

In terms of sequencing, the defence was making submissions first as it elected not to call any evidence on either the trial proper or in

support of its Charter application. During his submissions Mr. Lent argued that Constable Bell violated his client’s right not to bearbitrarily detained, which is guaranteed by

section 9 of the Charter. In that regard Mr. Lent submits that on the evidence heard at trial,it would appear that Constable Bell stopped Mr. McGregor’s vehicle while it was positioned on private property, specifically a plazalocated at Airport Road and Triple Crown Drive in the City of Brampton. Mr. Lent argued that there is no legal authority for the policeto carry out traffic safety or sobriety check stops of motorists on private property. In seeking to recall Constable Bell, Ms.

Beaton argues that the notice of application previously filed by the defence failed to particularizea Charter claim of the kind that has now been raised by Mr. Lent in his submissions. She argues that if the Crown had been on propernotice that this specific issue would be raised, she would have asked Constable Bell questions to elicit evidence relevant to the Charterissue that the defence has now presented for consideration. For example, the Crown might have elected to ask Constable Bell specificquestions regarding the precise location of the stop, where Mr.

McGregor was when the officer first observed him and whether theofficer saw Mr. McGregor’s vehicle travelling on a public roadway before his car was stopped in the parking lot. Based on the case law,these would all appear to be questions relevant to the Charter issue that Mr. Lent has now raised. Mr. Lent strongly opposes the Crown’s request. In terms of his failure to provide more specific notice of this particular issue, he pointsout that the disclosure that the Crown provided to the defence did little to alert him to the fact that the location of the stop was apotentially live question.

For example, the synopsis prepared by the police clearly indicates that the defendant was stopped “on AirportRoad”, there is no mention of the stop on private property. As a result Mr. Lent explains that he only became aware of this potentialCharter issue when Constable Bell testified. In other words, he learned of it exactly when Ms. Beaton did. As a result, Mr. Lent arguedthat the defence should not be faulted for failing to alert the Crown that the location of the stop would be the subject of Charterargument. Further, Mr.

Lent submits that it would be inappropriate and entirely unfair to allow the Crown to recall Constable Bell, at this stage, sothat it can try to shore up its case. He submits that such a ruling, at this juncture in the process, would bestow an unfair advantage on theCrown given that Ms. Beaton has now heard the defence’s submissions. As a result, Mr. Lent submits that if the court is seriouslycontemplating allowing the Crown to recall Constable Bell, the more appropriate course of action would be to declare a mistrial. In contrast, Ms.

Beaton responds that it would be unfair to foreclose the Crown from recalling Constable Bell. She notes that she is notarguing that the defence should be precluded from raising the legality of the vehicle stop now because of deficient notice, rather, sheargues that in doing so the court should ensure that any prejudice to the Crown for the late-breaking notice is alleviated by allowing it toelicit evidence relevant to the issue now presented.

The Rules of the Ontario Court of Justice specifically require the defence to serve and file a notice of application where a violation of theCharter is alleged and a remedy, like the exclusion of evidence, is being sought. A notice of application is not a mere placeholder. Rule2(1) specifically requires that the notice provide: (

a) a concise statement of the subject of the application; (

b) a statement of the grounds to be argued; and, (

c) a detailed statement of the factual basis for the application, specific to the individual proceeding. In Blom, the Court of Appeal recognized that these Rules exist to ensure the fair, just and expeditious determination of Charter issuesand thereby enhance the quality of the administration of justice, see R. v. Blom (2002), (ON CA), 61 O.R. (3d) 51(C.A.) at para. 21. The goal is to avoid unfair surprise so that: Both parties have adequate notice of the factual and legal basis for the Charter application. See Blom at paragraph 21. As a result, the failure to comply with the Rules, for example, the notice requirement, is not necessarily fatal to a Charter application.

Rather, the key consideration is prejudice. If there is no real prejudice, inadequate notice should not prevent the Charter applicationfrom being considered on its merits. Further, even where there is prejudice, if there is some way of ameliorating it, short of refusing toconsider the Charter argument, then that alternative should be preferred, see Blom at paragraph 22. See also R. v. Loveman (1992), (ON CA), 71 C.C.C. (3d) 123 at 127 to 28 (Ont. C.A.).

Here, given the disclosure provided by the Crown, I can find no fault with the defence in failing to avert the specific issue now beingraised regarding the legality of the vehicle stop in the original notice of application that was filed back in February 2014. Nevertheless,once it became apparent to the defence, at least by the completion of Constable Bell’s direct evidence, that the legality of the vehicle stopwould be the subject of Charter argument, I think that the defence was obligated to alert the Crown and the Court to this fact.

In myview, the defence has an ongoing obligation to notify the Crown and the Court if and when it realizes that a previously unanticipatedCharter issue has emerged at trial that it intends to raise and seek redress for. I think this is rather dissimilar to the situation where there has been some failure on the part of a Crown to prove some essential elementof the offence charged. Quite obviously, the defence has no obligation to alert either the Crown or the Court to such deficiencies beforeclosing submissions.

To the contrary, I think a defence lawyer who did such a thing would be grossly negligent and undermining anaccused person’s right to make full answer and defence to the charges. Potential Charter issues are rather different. Unlike the offence charged, the elements of which are limited and known based on thestatutory wording of the offence creating provision, the potential field of Charter issues that can be raised in any given case is expansivein the extreme.

Hence, the obligation on the defence to provide timely notice and particulars of Charter arguments to be raised so thatthe Crown can be alerted to the live issues in the case and call any evidence at its disposal relevant to those issues. It would be a terriblyinefficient trial process if the Crown were required to try and anticipate every conceivable Charter claim that a defendant couldpotentially raise and endeavour to elicit evidence to answer each and every such a claim.

In the circumstances of this case, I think it would be unfair to the Crown to foreclose it from calling evidence to answer the specificCharter claim now being raised regarding the legality of the vehicle stop. In short, until Mr. Lent’s submissions this afternoon, theCrown would have had no idea that the legality of the vehicle stop, based on its location, was a live issue in this case.

In the circumstances, given the late-breaking nature of the specific Charter issue that the defence has raised, I think there are really onlytwo options: the first is to preclude the defence from raising the issue at this juncture. Ms. Beaton for the Crown does not seek suchredress and to be frank, even if she had, I do not think that applying the principles set down in Blom, such an order would be warranted.

Rather, in the circumstances, I think any potential prejudice to the Crown occasioned by permitting the defence to raise this issue nowcan be adequately addressed by acceding to its request to recall Constable Bell. In all the circumstances, I frankly have difficulty seeing any unfairness to the defendant. The defendant enjoys no right to springunanticipated Charter issues on the Crown at the eleventh hour in a trial proceeding. The Crown, like any litigant before our courts, isentitled to procedural fairness. Accordingly, I am granting the Crown’s application to reopen.

The Crown will be permitted to recall Constable Bell to ask him discreetquestions regarding the specific location and circumstances surrounding the vehicle stop and the defence will be permitted to cross-examine on those issues. That is my ruling. FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Linda Lebeau, certify that this document is a true and accurate transcript of the recording of Regina v.

Leslie McGregor in the OntarioCourt of Justice, held at 7755 Hurontario Street, Brampton, Ontario taken from Recording No.3111_302_20150708_093448_30_STRIBOJ.dcr which has been certified by Jell Galloway in Form 1.

_________________ _____________________________________ Date Linda Lebeau Authorized Court Transcriptionist (ACT) Member in Good Standing PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORIZED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE AUTHORIZED COURT TRANSCRIPTIONIST (ACT) Ontario Regulation 158/03 – Evidence Act *This certification does not apply to the (Rulings, Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.