R. v. Gillis, 2013 NSSC 104

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Gillis, 2013 NSSC 104 Date: 20130206 Docket: Hfx 407833A Registry: Halifax Between: Her Majesty The Queen Appellant v. Kendra Gillis Respondent __________________________________________________________________ D E C I S I O N __________________________________________________________________ Judge: The Honourable Justice Patrick J. Duncan Heard: February 6, 2013 (Oral) Written Release of Oral : March 18, 2013 Counsel: Jim Janson for the Appellant W. Bruce Gillis, Q.C. for the Respondents By the Court :

Introduction [ 1 ] This is an Appeal brought by the Crown from the dismissal of a charge against Kendra Gillis and the facts are essentially agreed as between the parties. Those facts are: [ 2 ] On February 1, 2011 the Respondent was charged with unlawfully committing the offence of driving at a speed that exceeded the posted speed limit or other maximum speed limit in the Act by 16 to 30 km/h, inclusive, contrary to

section 106A(

b) of the Motor Vehicle Act. [ 3 ] It is alleged that she was the driver of a car that was stopped on Burnside Drive, Dartmouth for travelling at 102 km/h in a zone posted 80 km/h maximum. [ 4 ] The respondent was arraigned on April 6, 2011 and entered a plea of not guilty. [ 5 ] Counsel for Ms. Gillis requested disclosure on March 10, 2011. [ 6 ] Disclosure was faxed to the respondent ’ s counsel on March 21, 2011. [ 7 ] On April 7, 2011, respondent ’ s counsel requested a transcribed copy of the police officer's notes made on the ticket.

The transcribed notes were sent to the respondent ’ s counsel on May 2, 2011. [ 8 ] On February 7, 2012 the respondent ’ s counsel sent a pre-trial memorandum to the Court seeking a declaration that the

summary offence ticket issued by the investigating officer be quashed. The first submission was that the ticket failed to inform the accused person without reasonable delay of the specific offence charged, and therefore it resulted in a breach of the respondent ’ s rights guaranteed by

section 11(

a) of the Charter of Rights and Freedoms .

The second argument was that the Information was duplicitous or multiplicitous because it failed to clearly identify to the Respondent which of several possible offences she was charged with. [ 9 ] At the start of the trial on September 5, 2012, counsel for the respondent directed the trial judge's attention to a letter that was faxed to the trial judge by the Crown Attorney and which attached a transcribed version of the Officer's notes made on the ticket. [ 10 ] Counsel for the respondent submitted: ... that's clearly in breach of the laws of evidence and procedure for a counsel to submit evidence to the judge prior to the hearing.

The officer's notes are clearly stated to be "intended evidence of Constable Bruce at trial." That's, I'm quoting from his notes, from his letter. In my view, it's my understanding that it's fundamentally improper to send any unsworn documentary evidence to the trier of fact before the hearing and to ask it to be considered by the judge in advance, which Mr. Hartlen clearly is doing. In my submission, the Prosecutor is, in essence, becoming a witness by himself by tendering a document other than through a sworn witness.

And for this reason alone, I'd submit that this taints the whole trial. [ 11 ] The Justice of the Peace had not read the letter before the start of the trial and was not aware of it until it was objected to by the Respondent. She stated: "It's pretty clear to you that I hadn't seen and I've only just received it tonight". And, "Well, I've not read, I'm afraid to say, the brief. I've not read anything here." The Justice of the Peace did a cursory read of the letter during the hearing. [ 12 ] The Crown put forward the position that the letter was its response to the respondent ’ s pretrial motions.

It was intended to alert the trial judge to the Charter issue and to make the judge aware of the Crown's intended position. The officer's notes were

attached to the letter to show the trial judge what information the Respondent possessed with regard to the sufficiency of the Information. The notes were not introduced for the truth of their contents. As well, the respondent ’ s pre-trial memorandum of February 7, 2012 apparently referred to the officer's notes on the ticket. [ 13 ] The Crown suggested that the evidence attached to the letter was not the kind of evidence that would “ taint ” the Charter argument of the respondent, or the trial.

The Crown also argued that the issue of unsworn evidence be cured in the trial. [ 14 ] The trial judge dismissed the charge. She stated: Well, right now, I'm leaning heavily on the ... on the principle that they do taint, and it seems to me that the principle should be held ... I don't want to say sanctified, but is a clear, such a clear principle, that it should really matter not what the practice is, that would affect, as the Crown has argued the practical aspect, you know, the evidence will be given, it will be this.

So he was making a distinction that the mistake is just in principle and shouldn't affect the outcome. I think the principle is sufficient enough of a mistake, error that, that the process has been tainted, and I'm going to dismiss this. And I hope I'm appealed, so that we have some, some ... so we have some law on this, if ...... Analysis [ 15 ] The Crown has raised, as its first argument in this appeal, the sufficiency of the reasons of the Justice of the Peace in choosing to dismiss the charge against the Respondent.

I would say, without ruling specifically in response to that argument, that the reasons were certainly wanting in many respects and made analysis very difficult. There was much left to Mr. Gillis, to the Crown and ultimately to myself to try to read into what the thought process was that was employed by the Justice of the Peace in reaching the conclusion that she did. There was next to no analysis other than to simply say that, acknowledging the facts as they were, that she felt that it created a taint on the process, and I think it can be inferred, as Mr.

Gillis said, that she was concerned by the passage of time from when the charge occurred until when it was finally getting on for disposition on the merits. But, again, largely, she proceeded without giving us any real understanding of what her thought process was. [ 16 ] Having said that, I, having looked at the transcript and the arguments of both counsel coming in, identified what I thought are the points that are in issue which I can reasonably speak to to try to address this Appeal.

And so I have re-framed the issues in the following way: 1) First, whether the Justice of the Peace erred in law when she concluded that the filing of evidence, intended by the Crown to be used in responding to the Accused's pretrial motion, was improper and therefore tainted the process; 2) Secondly, whether the Justice of the Peace erred in law when she ordered that the charge against the Accused be dismissed, as a remedy for the taint to the process caused by the prosecution; and 3) Third, whether this Court should adjudicate the Accused's motion to quash the

summary offence ticket, although the question has not been previously heard. [ 17 ] Dealing with the first of the issues as I have re-stated them today, that is whether the Justice of the Peace erred in law when she concluded that the filing of evidence, intended by the Crown to be used in responding to the accused's pretrial application, was improper and tainted the process, the first question that needs to be addressed is whether it was in fact improper to file the material in advance of the accused's motion. [ 18 ] I have concluded that there was evidence that could reasonably cause a Justice of the Peace to have concern and ultimately to conclude that Crown Attorney Hartlen acted imprudently, if not improperly, in filing the officer's notes in the way that he did.

Having said that, the filing and serving of evidence in support of a motion, or in response to a pretrial motion by counsel, in advance of the hearing of those pretrial motions, is something that is common and is sometimes, and often times, required by the Courts. I think what Mr. Hartlen did has to be seen in that context.

[19] This is not something that is new to the courts. In the case of R. v. Kutynec, (ON CA), [1992] 7 O.R. (3d)277, the Ontario Court of Appeal recognized that there is a right of the Court to control its own process and that timely pretrial notice of aCharter motion is required to prevent ambush. It was held that this could include the requirement for the provision of evidence intendedto be relied upon by either party.

The practice evolved from the fact situation in Kutynec over the years, as I have observed it in theseCourts, to formalize the type of notice that is required, the time frames in which notice should be required to be provided, and the type ofinformation that would be provided, filed and served in advance of the hearing of the motion. [20] Some provinces have codified their requirements in rules of court that were established pursuant to the Criminal Codeprovision that permits a court to do so.

The Ontario Court of Justice Criminal Rules and Procedure are one such example and, whilethey were not in effect in Nova Scotia at the time that this matter was presented before the Justice of the Peace, we now, in Nova Scotia,have Rules of the Nova Scotia Provincial Court, as I understand it, in force since January 1, 2013 that mimic exactly what the OntarioCourt Rules have been. [21] For the purposes of this proceeding, I think it is important to read into the record what that is, because it does speak very muchto what the Justice of the Peace expressed concern over, that is, what is appropriate.

The codified version in Nova Scotia, among otherthings, says that in terms of applications brought before the Provincial Court, Rule 2.1(3) permits the filing of transcripts or audiorecordings of matters from previous court proceedings. Rule 2.3 speaks to additional material that can be filed by either party in dealingwith pretrial motions, and it includes, among other things one or more affidavits and an agreed statement of facts.

The Commentary haswhat I would characterize as a non-exclusive list of circumstances in which the Court may receive or even require further evidence. [22] The object is, that to the extent that it can be done without jeopardizing the accused's right to not have to disclose their defencein advance of the trial, the object is to try to ensure a process that is fair to everyone, - fair to each of the parties and to the Court; to beable to get to Court on the day of the pretrial motion and have all of the information that can reasonably be out there so that everyone isprepared. [23] So the question then is: What was the problem with the Justice of the Peace receiving this information from the CrownAttorney in advance of the hearing?

Well, if the goal is to ensure fairness of the process, even allowing for some flexibility, the concernthat I would have had here was not so much the propriety of making a filing, but whether it was not done in a timely manner. Whilenotice was given to the respondent, it was not given in what I would characterize as a timely manner. So certainly that would be anissue. [24] It was identified in the Crown Attorney's letter, in the "re:" line, as being part of the Crown's response to the

section 11(a)Charter motion that was being advanced by the respondent. I take Mr. Gillis' point that was not the primary argument that he was goingto advance, - he was looking at the duplicity argument.

But the reality is that from the Crown's prospective, they saw themselves,according to the information before me, as responding to a Charter motion too. [25] So while I would say it was not inherently wrong for a party to file with the Court and to serve evidence on the other side, thatit intended to rely on in the pretrial motion, this way of doing it certainly left something to be desired. [26] The other thing that struck me about it was that typically when that type of information gets filed with the Court, it gets filedon direction of the Court, usually through a case management process.

There is some discussion, in advance, as to what the Court isprepared to receive and what the time lines would be for filing. It might be that at that time, speaking in a general way, that partieswould identify some disputes as to admissibility of the evidence and how and when that is going to get resolved. So those types ofthings were not permitted here by the way in which Mr.

Hartlen did it. [27] I think that with a speeding ticket, in night court, it is not surprising to me that some of the formalities that we would observe incriminal courts and in serious charges, crimes of violence, for example, that some of those get modified to accommodate the expeditiousdispensing of justice in the night court setting. However, once it is presented to me in this forum, I have to look at it in the light of thelarger criminal context and not just in the context of how it might go in that courtroom.

[ 28 ] So the message should be, and what I think that the message of the Justice of the Peace was: if you are going to file information that you intend to present as evidence in the hearing, then follow the Rules and get direction of the court; don't just do it, and don't do it on less than 24 hours notice to the other party.

So that brings me to this point ,which is that it was open to the Justice of the Peace to conclude that it was improper of the Crown Attorney to file the information in the way that it was done. [ 29 ] The next question is whether or not this could be seen as something that would "taint the process". I asked Mr. Gillis what that meant, and we had a very good discussion. I thank you Mr.

Gillis, as always from my past experience with you, even though in this case you came and I presented a different agenda to you, you responded as I hoped you would, in a very thoughtful and well prepared way, and I will concede that you caused me considerable pause in a number of these areas.

It certainly helped my thought process. [ 30 ] So, turning then to this next question of taint, in my view it is only remediable if there is evidence to demonstrate that the trial of the accused would be in some way rendered unfair, or that the administration of justice would be brought into disrepute by the conduct of the Crown in this case. [ 31 ] Courts are regularly asked to look at intended evidence and then if ruled inadmissible, to disregard that information in part or in total.

It is part of the Judge's role to be able to compartmentalize information in that way, and as such, the fact that a Judge looks at intended evidence in advance of the hearing, even though it may never get into evidence, does not automatically taint the process. So it is not a matter of saying: "Well I have this here, and therefore the process is tainted".

There has to be some further consideration and analysis and evidence to say in what way it is tainted. [ 32 ] In this case, the information before me suggests that the Justice of the Peace had not looked at the information prior to the parties being in Court and on the record and in the courtroom, and then only, according to the way I understand it, in a somewhat cursory way while the parties were making their respective submissions with respect to the propriety of it having been filed, and what the disposition might be.

So it would be fair to say that, objectively speaking, it could not have had any impact on the mind of the Justice of the Peace prior to going on record with the parties. [ 33 ] So the question raised by Mr. Gillis to the Justice of the Peace became the propriety of the filing, before ever getting to the admissibility of the document.

Whether or not the Justice of the Peace might have reversed that order, and said: well let's talk about whether this is going to have any impact or not, whether it is admissible or not, and then looked at the issue in the context of that decision - as to whether or not it was going to taint the process. One could argue that would have been the preferred way to look at it. Because, in effect, there is never, in the transcript, much of a debate about exactly how this impacts on the fairness of the trial, the ability to make a fair and full answer in defence.

One has to, I think at best, be able to draw the inference that perhaps the Justice's concern was that it just should not have happened, and the fact that it did taints the process, that is, it brings the administration of justice into disrepute. It seems to be one

interpretation you could draw from what happened here. [ 34 ] But, the difficulty as I saw it when I went through the matter, was that there was no attempt to make that analysis, to look at it and say: "Well what evidence do I have of the manner in which receiving this will impact on the process and on the perception of the administration of justice?" [ 35 ] It is not just a matter of the Justice's lack of analysis. I looked further and looked at what evidence was before her to reach a conclusion that any one of these concerns could have been satisfied.

I have to say, quite frankly, that I could not see in the evidence any basis, let alone one to ultimately lead to the remedy that it did, on which to conclude that this would have caused anyone in an adjudicative role, acting in a reasonable manner, to conclude that this particular, the substance of what was in this information was going to somehow irretrievably or significantly, perhaps I should be more careful in the language I use, that it would infringe or somehow deny the accused's ability to get a fair trial. [ 36 ] So then, all that leaves is the fact of it having been presented in advance with minimal notice to the defence counsel.

The material had been disclosed, I think, over a year in advance, so that you couldn't say that it was by ambush in the sense that it was something that the defence had never seen before. But I think that it is fair to say that the defence might have been caught off-guard by

the fact that it was going to be presented as a part of a response to their pretrial applications. [37] So I am of the view that there is no evidence that would support a finding that the fairness of the trial was put in jeopardy, orthat the ability to the accused to make full answer and defence was in someway infringed or denied. I do not see the evidence that wouldcall into question the appearance of the administration of justice. [38] It still leaves us with this question: if there was evidence that would support that conclusion, was the remedy the one thatshould have been adopted?

So, while I am of the view that the Justice of the Peace erred in concluding that there was a "taint", usingthe language of the Justice of the Peace, that could have infringed or denied those fundamental rights that I spoke of, it would still be aquestion, if I was wrong in that, as to whether or not the Justice of the Peace adopted the correct remedy. [39] The authority of the Court to dismiss the charge in these circumstances can only, in my view, have been available as a remedyunder

section 24 of the Charter where the Court was satisfied that the accused's right under s. 7 of the Charter was infringed or denied. Specifically, the argument would be that the Crown conduct amounted to an abuse of the court's process. [40] I acknowledge the common law position that has been set out with respect to abuse of process; where it said that a stay or adismissal in this case, would only be granted in the clearest of cases. I referred you to the case of R. v.

Nixon 2011 SCC 34, inparticular at paragraphs 33-42 where the Supreme Court of Canada set out a very good and concise description of the doctrine of abuse ofprocess, both historically going back to R. v. Jewitt (SCC), [1985] 2 S.C.R. 128 and bringing it forward with R. v.O'Connor (SCC), [1995] 4 S.C.R. 411 and into the Charter era, where s. 7 of the Charter was adopted to deal withissues of prosecutorial misconduct that affected the fairness of the trial. It was also used to deal with prosecutorial misconduct thatcontravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

Ultimately, when you come toparagraph 42 of the decision, the Court sets out the following, and I will read this into the record: The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused's fairtrial interests or to the integrity of the justice system, is that set out in Canada (Minister of Citizenship and Immigration) v. Tobias,[1977] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002]1 S.C.R. 297.

The Court continues: A stay of proceedings will only be appropriate when: (1) the prejudice caused by the abuse in question will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing thatprejudice. [41] In short, I would say that the evidence was essentially non-existent that showed prejudice to the accused in this particular caseby what occurred.

There was nothing before the Justice of the Peace that I could see that would suggest that prosecutorial conductaffected the fairness of the trial, and so it leaves us with the administration of justice matter.

Even if one were to assume that what theCrown did here in some manner, negatively impacted on the appearance of the administration of justice in the public eye, the remedythat was adopted, would, in my view, be inappropriate and unnecessary to, in effect, avoid the prejudice that was caused by that abuse,and to keep it from being manifested, perpetuated or aggravated by the trial continuing. [42] Further, and I think probably the stronger of the two arguments in this case, or concerns in this case, is what other remedy wasreasonably capable of removing the prejudice.

If the Justice of the Peace felt as strongly as she obviously did in making thedetermination that she did, then it seems to me that the other option that should have been considered was an adjournment, in order forthe accused to have an opportunity to respond to the filing of this information and to make representations as to admissibility. There wasalso a question of reliability, as I understand it, with respect to the quality of the transcription. So those were legitimate arguments thatcould have been made, but perhaps another day. The Court could have considered recusal.

The Justice of the Peace was not seized withthe matter at that point. No evidence had been called, as I recall. Alternatively a mistrial may have been declared and put the Crown tothe issue of whether or not they were going to retry the issue. Although it is an extreme result, there are cases where sanctions have

been imposed on the Crown for what was considered to be Crown prosecutorial misconduct, particularly where it may have caused increased cost and difficulties to the accused person. So there were a number, in my view, of other remedies which should have been, but were not considered. [ 43 ] I acknowledge, as has been discussed, that this was a

summary offence matter that had been around for some considerable time by the time the Justice of the Peace dealt with it, and I recognize that the Justice of the Peace referred to that. Obviously you can infer she was concerned about the delay. However, when you look at the reasons for the delay over the course of the previous two years, you could not say that formed part of the Crown misconduct that gives rise to the problem that ultimately caused the charges to be dismissed.

In other words, the reasons for the delay should not have been held against the Crown, which is in effect, what would have happened, assuming that is what was in the Justice's mind. [ 44 ] So, my view as to the remedy that was applied is that there was no analysis to support the conclusion that was reached, and a review of the evidence that was before the Justice of the Peace, would not support the conclusion that was arrived at.

Conclusion [ 45 ] In conclusion, I am satisfied that the decision of the Justice of the Peace contains errors in law and that the appropriate remedy is to order a new trial. [ 46 ] The question was raised in written argument by the respondent, as to whether or not this court would consider the substantive motion, that is, the motion to quash the

summary offence ticket on the basis that it is duplicitous. [ 47 ] There are a couple of reasons why I have declined, as I have indicated to counsel previously today - that I am not prepared to do that. First, I do see it as a discretionary issue, and it would be a matter that, in my view, should have had an opportunity to be aired in Provincial Court at the trial level, before it comes before an appellate court for consideration. While Mr.

Gillis takes the view that there is no factual context that has to be created for that argument, and he may be correct in that, the point of it is that the Crown has never had an opportunity to make its case, if you will, to respond to that. [ 48 ] Significantly, the Notice of the Appeal was filed by the Crown in this matter. There was no Notice of Contention, if that's the correct term, to put the Crown on notice of the intention of the respondent to raise that argument at this time. It came out in the written arguments, and so it generated a reply brief from the Crown speaking to the issues.

That is not the manner in which this type of a question would normally arise. [ 49 ] What should have happened is after the filing of the notice of appeal, the respondent should have filed a document indicating to the Court that it sought a ruling on this other issue. That, in and of itself, might not be fatal, but it's an aspect of it, and certainly the Crown raised the concern in their reply about the manner in which this was brought forward.

But, my primary reason is that in my view, this is something that should be dealt with first by the trial court and then ultimately by a court sitting on appeal if it comes to that. [ 50 ] The end result of all this gentlemen is that I am ordering that the matter be remitted to a new trial before a different Justice of the Peace. [ 51 ] Thank you. Appeal Granted. Mr.

Gillis: My Lord, just ah, just as a matter of record, not that it would change anything, but I did want to inform the Court that the issue of whether the Court, or the Appeal Court could deal with the primary question, was raised with counsel before we set, before we had the date setting hearing before this Court, and it was raised at the date setting of hearing. So I just didn't want you to think that I hadn't considered that. The Court: It was raised on the record, so the Court was advised?

Mr. Gillis: Yes. The Court: Okay, Mr. Gillis: When we set the date for this hearing and set the dates for filing and so forth. The Court: Thank you very much for pointing that out, I, I did not catch that and I guess the problem is that when I went through the file I didn't see, I think this is where you get notices of trial ... Mr. Gillis: Yes, it wouldn't have been on the record, probably that you would look at, but yeah it was raised. The Court: And I can see it, I, and, again, that's not what turned on, ... Mr. Gillis: That's not the major issue.

The Court: ... it was a factor in my mind because I had nothing alerting me to this until I read the briefs, so thank you very much. And again I appreciate your efforts in preparing for the matter today and for the professional manner in which you represented your client. Anything else? Nothing, then we can close court. COURT CLOSED. J.