Ontario (Ministry of Labour) v., 2013 ONCJ 588

COURT FILE No.: Thunder Bay Information 120246 DATE: 2013·10·21 Citation: Ontario (Ministry of Labour) v. 1467344 Ontario Limited , 2013 ONCJ 588 ONTARIO COURT OF JUSTICE BETWEEN: The Ministry of Labour — AND — 1467344 Ontario Limited Before Justice of the Peace John H. Guthrie Heard on 01-02 May, 2013 and 30 July, 2013 Reasons for Judgment released on 21 October, 2013 Catherine Glaister .............................................................................................. for the prosecution Norman A.

Keith ........................................................... for the defendant 1467344 Ontario Limited JUSTICE OF THE PEACE GUTHRIE: This is the decision of the court in regards the Notice of Application and Notice of Constitutional Question, as argued on May 1 and 2, 2013; and as summarized by both counsel on 30 July, 2013. The court has considered all of the evidence presented to it, including viva voce evidence, exhibits 1 through 4, case law as presented by counsel, as well as your summations.

The defendant, 1467344 Ontario Limited , has claimed remedies pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) in relation to a breach of its rights under

section 11(

d) of the Charter . The defendant, 1467344 Ontario Limited , has made an Application at the conclusion of all evidence given in regard the Notice of Constitutional Question. The Application is for : 1 .An Order for a stay of proceedings under s. 24(1) for a breach of the Defendant’s rights under s. 11(

d) of the Charter ; 2 .In the alternative, a stay of proceedings for an abuse of process; 3 .Costs of this application, on a substantial indemnity basis, in accordance with section 24(1) of the Charter ; and 4 .Such further and other relief as this Court may deem just and appropriate. The Grounds for the Application and material facts giving rise to the Constitutional Question have been described by the defence as follows: (

a) The Defendant is charged with offences under the Occupational Health and Safety Act (the OHSA), as defined under

section 11 of the Charter , and is thereby entitled to the legal rights and protections conferred by the Charter, as well as at common law; (

b) That the Defendant has been charged with, and brought to trial on two (2) counts under the OHSA. Pursuant to section 66(2) of the OHSA, he would be subject to a fine of up to $500,000 per offence as a corporation, if convicted; (

c) That in the course of his investigation, Mr. Cary Roy, inspector for the Ministry of Labour, gave an assurance to Mr. Stephen Secco, the president of 1467344 Ontario Limited, he and 1467344 Ontario Limited would not be charged in relation to the incident of June 21, 2011; and (

d) That it is an abuse of process and a breach of Charter rights for a representative of a government agency to give an undertaking or promise not to prosecute, and subsequently breach that undertaking by commencing a prosecution; (

e) That following a breach of that undertaking not to prosecute, the request for cooperation and compliance during an investigation will amount to an abuse of process, a Charter violation, and will be an appropriate basis for a stay of the charges; (

f) That the Defendant relied on this undertaking in complying with the Ministry of Labour request for cooperation and compliance during the investigation; (

g) That information collected from the Defendant following the undertaking cannot be cleansed, and as a result, this will result in an unfair trial and is therefore a further abuse of process. If the Grounds are proven, the Defendant is seeking a remedy for a contravention of s. 11(

d) of the Charter and appropriate remedies under s. 24 of the Charter. After some considerable discussion and submissions by counsel, the Court decided that it would determine the issue of the Constitutional Question first. Upon the decision of that issue, the trial proper would or would not proceed, as required. The court arraigned the defendant, 1467344 Ontario Limited as represented by the president Stephen Secco, on charges 2 and 3 of information 120246. He pled not guilty to both charges.

On May 1, 2013, as stated, we began by determining how best to approach the Notice of Application and Notice of Constitutional Question, as presented by defence counsel. Submissions were entertained from both defence and crown counsel in this regard. After consideration of all points of view, the court decided at that time that we would deal with this matter in advance of the trial itself, so as to avoid the potential pitfalls of a “blended voire dire”. There was no argument voiced with this approach. The main issue before the court then, is whether Inspector Cary Roy told Mr.

Steve Secco that he would not be prosecuted. The second question is: if he did tell him that he would not be prosecuted, does this constitute an abuse of process? Thirdly, is there any other way that the defendant’s rights have been ‘breached’ under s. 24(1) of the Charter ? It is up to this court to “harvest” the truth of the matter. For the reasons that follow, I agree with the Crown that the Application has not proven an abuse of process. I also agree that there is no basis for finding that the appellant's s. 24(1) rights were breached in the circumstances of this case.

A section 24(1) breach would require an infringement or denial of Mr. Secco’s or Mr. Secco’s company’s rights or freedoms. I do not find that to be the case here. As this would thus negate the need to discuss costs of the application or any other relief, I would dismiss the Application in its entirety. First of all, the Court finds that the stated “grounds” for the Application to be the argument, rather than the actual grounds. The only ground that the court sees in this argument is in the third point – “that in the course of his investigation, Mr.

Cary Roy, inspector for the Ministry of Labour, gave an assurance to Mr. Stephen Secco, the president of 1467344 Ontario Limited, that he and 1467344 Ontario Limited would not be charged in relation to the incident of June 21, 2011 ”. I find that the stated “grounds” that follow that point simply arise from that third point. In reaching this decision, the court read and given consideration to the following authorities provided by the Defence: The first of these is of course

R. v. Jewitt (SCC), [1985] 2 S.C.R. 128: The judgement of the Court was delivered by the Chief Justice who began by telling us that: QUOTE “The principal issue in this appeal is whether a judicially entered stay of proceedings is a judgement or verdict of acquittal of a trialcourt’ from which the Crown may appeal to the Court of Appeal under s. 605(1)(

a) of the Criminal Code. The point, though narrow, isimportant and contentious. It has given rise to conflicting opinions in Courts of Appeal of this country. I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra , and affirm that: ... there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate thosefundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court'sprocess through oppressive or vexatious proceedings.

I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the "clearest of cases". UNQUOTE As I stated earlier, I find that the vagueness of the answers provided by Inspector Roy do not provide me with a reason to believe that hewas lying, but rather that he was unsure. As a result, this is not one of those “clearest of cases”. And, as we know, Jewitt makes liberal references to R. v.

Young [1984], affirming the discretion of a trial court judge to stayproceedings where compelling an accused (in this case, a defendant) to stand trial would violate the community’s sense of fair play anddecency, and to prevent the abuse of a court’s process through oppressive or vexatious proceedings. As I weigh that responsibility, I seethat it would not be oppressive or vexatious to in fact proceed to trial. Further, R. v. O’Connor (SCC), [1995] S.C.J. No. 98 In this Supreme Court decision, we have the Chief Justice telling us: ”I would adopt the conclusion of the Ontario Court of Appeal in R. v.

Young, and affirm that "there is a residual discretion in a trialcourt judge - to stay Proceedings where compelling an accused to stand trial would violate those fundamental principles of justice whichunderlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive and vexatiousproceedings".

I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the "clearestof cases". [Emphasis added.] And in somewhat of a “piling on” technique, the Chief Justice confirms for us that: QUOTE “The general test for abuse of process has been repeatedly affirmed: R. v. Keyowski , [1988], R. v. Mack , [1988], R. v. Conway , [1989],R. v. Scott , [1990], and most recently in R. v. Power , [1994].

And, further: QUOTE “After considering much of this case law, the Court of Appeal concluded that the preponderance of cases favoured maintaining adistinction between the Charter and the common law doctrine of abuse of process. The Court of Appeal may, in my view, haveunderestimated the extent to which both individual rights to trial fairness and the general reputation of the criminal justice system are

fundamental concerns underlying both the common law doctrine of abuse of process and the Charter . This, for the following reasons: “First, while the Charter is certainly concerned with the rights of the individual, it is also concerned with preserving the integrity of the judicial system. Subsection 24(2) of the Charter gives express recognition to this dual role. More significantly, however, this Court has, on many occasions, noted that the principles of fundamental justice in s. 7 are, in large part, inspired by, and premised upon, values that are fundamental to our common law. In Re B.C.

Motor Vehicle Act , [1985] , at p. 503, Lamer J. (as he then was) observed: ... the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the Justice system. Such an approach to the

interpretation of "Principles of fundamental justice" is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters. [Emphasis added.] “Conversely, it is equally clear that abuse of process also contemplates important individual interests.

In the book: "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept (1991), at p. 331, Professor Paciocco suggests that the doctrine of abuse of process, in addition to preserving the reputation of the administration of justice, also seeks to ensure that accused persons are given a fair trial. Arguably, the latter is essentially a subset of the former. Unfair trials will almost inevitably cause the administration of justice to fall into disrepute.

What is significant for our purposes, however, is the fact that one often cannot separate the public interests in the integrity of the system from the private interests of the individual accused.” UNQUOTE No argument there. I don’t believe that to be an issue here. But his further words bear repeating: “The principles of fundamental justice both reflect and accommodate the nature of the common law doctrine of abuse of process.

Although I am willing to concede that the focus of the common law doctrine of abuse of process has traditionally been more on the protection of the integrity of the judicial system whereas the focus of the Charter has traditionally been more on the protection of individual rights, I believe that the overlap between the two has now become so significant that there is no real utility in maintaining two distinct analytic regimes.

We should not invite schizophrenia into the law. ( I love that quote – it is SO true.) QUOTE “Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the power to confer 'such remedy as the court considers appropriate and just in the circumstances".

Professor Paciocco, at p. 341, has recommended that a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice.

I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the integrity of the judicial system.” I too adopt these guidelines, but have determined that in this case a trial will not manifest, perpetuate or aggravate any prejudice. If there was any prejudice, a trial will search it out. “Among the most relevant considerations are the conduct and intention of the Crown, For instance, non-disclosure due to a refusal to comply with a court order will be regarded more seriously than non-disclosure attributable to inefficiency or oversight.

It must be noted, however, that while a finding of flagrant and intentional Crown misconduct may make it significantly more likely that a stay of proceedings will be warranted, it does not follow that a demonstration of mala fides on the part of the Crown is a necessary precondition to such a finding”. Mr. Keith would have us believe that the intent of Inspector Roy was ‘flagrant and intentional’. The court would respectfully submit that it was much less than that.

Even in this case presented by the defence at paragraph 82, it states: ‘It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued’.

That is a very high standard. And, as I say, his right to make full answer and defence will be satisfied… at trial. R. v. Power (SCC), [1994] 1 S.C.R. 601 While this case gives us more of the affirmations of previous and later cases offered by Defence, I find that it also appears in some waysto favour the Crown argument, rather than the defence position? Allow me to explain: In “Power”, the majority of Supreme Court Justices observed the following: QUOTE “In R. v. Keyowski (1988), the court unanimously reaffirmed the principle enunciated in R. v. Jewitt.

While she held that a stay ofproceedings for abuse of process was not limited to cases where there is evidence of prosecutorial misconduct, Justice Wilson wascareful to point out that the remedy will only be granted in the "clearest of cases". “The doctrine (of abuse of process) is one of the safeguards designed to ensure "that the repression of crime through the conviction of theguilty is done in a way which reflects our fundamental values as a society": Rothman v. The Queen, [1981], per Justice Lamer.

Itacknowledges that courts must have the respect and support of the community in order that the administration of criminal justice mayproperly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in theeffective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. (Emphasis added.) This is the point being made by the Defence.

However, in the very next paragraph, the decision reads: QUOTE “I added, however, on the same page, that a stay of proceedings for abuse of process will only be granted in the "clearest of cases". “I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the"clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to theproper administration of justice that it warrants judicial intervention.

To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of processhas been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the pointthat they are contrary to the interest of justice. As will be developed in more detail further in these reasons, the Attorney-General is amember of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice isproperly done.

The Attorney-General's role in this regard is not only to protect the public, but also to honour and express the community'ssense of justice. And this is where I say that this case can work for both sides of the argument. They continue: QUOTE “Accordingly, courts should be careful before they attempt to "second-guess" the prosecutor's motives when he or she makes a decision.Where there is conspicuous evidence of improper motives or of bad faith or of

an act so wrong that it violates the conscience of thecommunity, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent anabuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.” UNQUOTE

R. v. Conway (SCC), [1989] 1 S.C.R. 1659 This is an appeal of a murder trial at the Supreme Court level. (AS ALREADY MENTIONED IN “POWER” ABOVE) The justices said: QUOTE “A trial judge has discretion to stay proceedings in order to remedy an abuse of the court's process.

This Court affirmed the discretion"where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's senseof fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings" Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with theprosecution of the charge. The prosecution is set aside, not on the merits but because it is tainted to such a degree that to allow it toproceed would tarnish the integrity of the court.

Consequently, where the affront to fair play and decency is disproportionate to thesocietal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. “Stays for abuse of process are not limited to cases where there is evidence of prosecutorial misconduct. In delivering the reasons of theCourt in R. v.

Keyowski , [1988], Wilson J. made it clear that all relevant factors, including, but not restricted to, bad faith on the part ofthe Crown, are to be considered: To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine.In this case, for example, where there is no suggestion of misconduct, such a definition would prevent any limit being placed on thenumber of trials that could take place.

Prosecutorial misconduct and improper motivation are but two of many factors to be taken intoaccount when a court is called upon to consider whether or not in a particular case the Crown's exercise of its discretion to re-lay theindictment amounts to an abuse of process”. UNQUOTE Note that the learned judge is making reference to the facts of that case, whereby s. 11(

b) was invoked. This was over a matter of sevenyears, and there took place a great number of issues: convictions, appeals, applications, mistrial, and even different lawyers. WE have amuch different set of facts here. (these cases seem entwined, like vines in a graveyard. I hope that I am not repeating myself!) R. v. Regan 2002 SCC 12 , [2002] S.C.J. No, 14 Justice LeBel, for the majority of the Supreme Court Justices, says: “In the Charter era, the seminal discussion of abuse of process is found in R. v. O'Connor , [1995].

The doctrine of abuse of process hadbeen traditionally concerned with protecting society's interest in a fair process. “A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: "that ultimate remedy", as this Court inTobiass called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will neverget his or her day in court; society will never have the matter resolved by a trier of fact.

For these reasons, a stay is reserved for onlythose cases of abuse where a very high threshold is met: "the threshold for obtaining a stay of proceedings remains, under the Charter asunder the common law doctrine of abuse of process, the 'clearest of cases'.

“Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, astay of proceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice. “The Court's judgment in Tobiass , at para. 91, emphasized that the first criterion is critically important.

It reflects the fact that a stay ofproceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims toprevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future”. UNQUOTE These are all cases at the higher level of Court, and if I find there to be persuasive argument therein, this court is bound to accept thatargument. Counsel continues to provided much more, should this Court require their application. It does not.

As I said, let us consider the authorities of the Crown: _____________________________________________ Irwin Toy Limited v. Quebec Attorney General, [1988] 1 S.C.R. 927 This Supreme Court of Canada decision speaks to fundamental justice and whether corporations may invoke the protection of

section 7of the Charter. Madame Crown directed us to paragraph 96, where the Chief Justice said: QUOTE “It appears to us that this

section was intended to confer protection on a singularly human level. A plain, common sense reading of thephrase "Everyone has the right to life, liberty and security of the person" serves to underline the human element involved; only humanbeings can enjoy these rights. "Everyone" then, must be read in light of the rest of the

section and defined to exclude corporations andother artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings.” Or, as interpreted toward the case at bar, 1467344 Ontario Limited should be seen to be excluded in the term “everyone”. Despite thefact that Mr. Secco is the only employee of that corporation, the corporation itself does not enjoy the protection of that part of theCharter. But in the court’s mind, this has little bearing on this decision today. R. v. D(E), (ON CA), [1990] OJ No. 958 (CA) This is a case that, surprise, originates in Thunder Bay.

It is VERY germaine to our situation. It is an Ontario Court of Appeal decision dealing with a stay of proceedings based on an alleged abuse of process. The trial judge’s orderof stay was set aside on the appeal by Justices Arbour, Morden and Griffiths. At para. 14, Arbour, J. states: “the trial judge ordered the charges stayed on the basis that to proceed against the accused in the circumstances would constitute an

abuse of process.” Then, at para. 17, he explains: “However, in my view, the learned trial judge erred in his conclusion that to proceed against the accused in the circumstances would constitute an abuse of process”. UNQUOTE He clarifies the Court’s thinking in the next paragraph: ‘After some years of uncertainty, the guiding principles respecting abuse of process have now been clearly stated. They were articulated recently by the Supreme Court of Canada in Keyowski v.

R. (1988), where Wilson J., for the court, said: The availability of a stay of proceedings to remedy an abuse of process was confirmed by this court in R. v. Jewitt (1985). On that occasion, the court stated that the test for abuse of process was that initially formulated by the Ontario Court of Appeal in R. v. Young (1984). UNQUOTE And, Justice Arbour addresses the issue of ‘the clearest of cases’: AND I QUOTE “In Keyowski , the alleged abuse consisted of the Crown proceeding with a third trial of the accused, after the jury had been unable to agree in the first two trials.

The court rejected the submission that prosecutorial misconduct was an essential element of the doctrine of abuse of process and decided rather that prosecutorial misconduct and improper motivation were but two of the many factors to consider in determining whether there has been an abuse of process. The Supreme Court concluded that the case before it was not one of those "clearest of cases" which would justify a stay. A stay of proceedings is tantamount to an acquittal in that it effectively brings the proceedings to a final conclusion in favour of the accused ( R. v. Jewitt (1985).

The facts upon which a finding of abuse of process is based are critical ( R. v. Young , p. 32). The burden is on the accused to prove the abuse of process on a balance of probabilities ( R. v. Miles of Music Limited ). The accused must show that allowing the state to proceed against him would violate the community's sense of fair play and decency or that his trial would be an oppressive proceeding. A claim of abuse of process is necessarily fact specific as it expresses society's changing views about what is unfair or oppressive.

UNQUOTE I find it very instructive at para. 35 where the learned Justice states: “Several courts have found it to be an abuse of process for the Crown to renege on an agreement with the accused. Typically though, these cases involved "deals" in which the accused had genuinely compromised his or her position and made a real concession in anticipation of some reward, such as the abandonment of prosecution. Moreover, and largely because of that, they were all cases where the accused had been prejudiced by the Crown reneging on the deal. And what constitutes a ‘deal’?

Arbour tells us in the very next case reference: QUOTE “In R. v. Smith (1974), the accused was charged with possession of marijuana. He informed the Crown that he had another quantity of the drug in his possession. The Crown Attorney made it clear to him that if he decided to turn over this other marijuana, no charges would be laid with respect to it. The accused did so and the Crown charged him with conspiracy to possess and conspiracy to traffic on the basis of the drug and of his conversation with the Crown when-he turned it in. The Court held that to proceed with these charges would be an abuse of process.

Berger J. wrote at p. 272: I do not think that the result in this case should be conditioned by any nice distinctions based on what Mr. Lavallee [the Crown] said. The promise given by Lavallee should be interpreted in the way that any ordinary man would interpret such a promise, that is, as one encompassing any charge based on the admissions made and the evidence obtained as the result of the deal made ... The ordinary man, having made such a deal with Crown counsel, would feel that he could walk in safety thereafter. He would be astounded and amazed if charges of conspiracy could be proceeded with.

I think that what occurred in this case constitutes oppression. The ordinary man is entitled to expect that the Crown will keep its word. UNQUOTE And once again at para 40: QUOTE “In Re Abitibi Paper Company and The Queen (1979), the doctrine of abuse of process was used to stay a provincial prosecution under pollution legislation. The court characterized the matter as being essentially civil rather than criminal.

The accused had voluntarily embarked on a program of abatement of water pollution and a senior official at the Ministry of the Environment had agreed not to prosecute him if the program was completed by a certain date . (emphasis added) Prior to the completion date, the Crown laid charges under the Environmental Protection Act , and the Ontario Water Resources Act . The Court held that this was one of the "exceptional circumstances" in which the Crown's conduct amounted to an abuse of process.” UNQUOTE

Justice Arbour then states: “In the case at bar, the facts are unclear as to whether the respondent made a "deal" with the police, under which he agreed to leave thecomplainants alone in exchange for the charges not being laid, or whether he was merely informed that the complainants were unwillingto testify and warned that he should stay away from them. The burden is on the accused to establish the facts that support his claim ofabuse of process. If the conversation between Sgt.

Babiak and the respondent can properly be characterized as an agreement, therespondent did not make a real concession, turn over evidence or in any way compromise his position. (my emphasis added) Itappears that Sgt. Babiak was hoping to have the respondent's name placed on a sexual abuse registry. There is no evidence as to whetherthis was discussed with the respondent, let alone that he ever agreed to anything of the sort. No evidence as to whether this was discussed, let alone if he agreed!

I see an ‘eerie’ similarity again at para 43: And I QUOTE. “The respondent is not facing more serious charges now than he would have faced in 1984. There is no evidence that his life wasdisrupted, that his reputation had to be restored or that his working life was interfered with in the intervening period. There is noevidence of trickery, improper motives or malice on the part of the police or the complainants. The potential prejudice to the respondentin making full answer and defence can be resolved at trial.

Without minimizing the importance of his personal sense of security and hispeace of mind, it cannot be said that he suffered the degree of prejudice required to find an abuse of process, particularly in view of thenature and seriousness of the offences”. UNQUOTE R. v. Nixon, 2011 SCC 34 , [2011] SCJ No. 34 In the Nixon case, even with a plea agreement in place, the Judges of the Supreme Court of Canada determined that the Assistant DeputyMinister acted in good faith and the accused suffered no prejudice.

Justice Charron spoke for the Court of nine judges when he said: QUOTE “As discussed earlier, the ADM's decision to resile from the plea agreement falls within the scope of prosecutorial discretion. In theabsence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate,the decision to proceed with the prosecution is the Crown's alone to make. Reasonable counsel may indeed, and often do, differ onwhether a particular disposition is in the public interest in the circumstances of the case.

The ADM, in good faith, determined that Crowncounsel's assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences,concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded asevidence of misconduct. Ms. Nixon was returned to the position she was in at the conclusion of the preliminary hearing before the plea agreement was enteredinto. There is no merit to the contention that she suffered prejudice as a result of the repudiation. UNQUOTE A plea agreement is a ‘deal’.

It is in fact a BIG DEAL! So, even in a case where the deal is made between the parties, the abuse ofprocess is not proven. Also, Mr. Keith would have us believe that Inspector Cary Roy acted in bad faith, misconducted himself and had improper motives. Icannot agree, based on the evidence provided. The transcript shows on page 45 that Mr. Secco under direct examination tells the courtthat the inspector said: QUOTE “our branch is different up here. I know in southern Ontario they fine, fine, fine. But we don’t do thathere.” UNQUOTE On the following page, the Q&A with defence counsel goes like this: Q. Okay.

As a result of the statements that you told us that he made to you about not prosecuting the company by the truck, did youtake any steps of reliance upon those statements? A. Yes. Q. And what were those? A. Well, I did nothing.

Q. Did you appeal the orders? A. No. Q. Why? A. I was quite content that I was not gonna be prosecuted. And it goes on. There are a couple of points that I am making here. Firstly, the words that are attributed to Inspector Roy by Mr. Seccodo not include the word “prosecute” or “charge”. That is only added once the follow up question is asked by counsel. Secondly, Mr.Secco makes a decision on his own volition to not appeal the orders or hire a lawyer, based on his own assumption, not based on adefinite deal with the Inspector. R. v.

BHP Diamonds Inc., 2002 NWTSC 74 , [2002]NWTJ No. 91 (SC) This is a courageous choice on the part of the Crown. Despite the accused being found not guilty, the Crown offers it as an example ofwhere there was insufficient evidence to justify a stay of proceedings for reason of abuse of the court’s process. And it is a good choice, because it points to the need for a clear agreement between the parties; a ‘deal’ before abuse of process can beproven. In coming to his decision, Justice Richard states: QUOTE “Under the abuse of process argument, BHP points to the infamous meeting at the Yellowknife airport.

This was initially raised as a"promise not to prosecute" issue. UNQUOTE Justice Richard continues by explaining the relevance of: Abitibi Paper Company Limited and The Queen (1979): QUOTE “the accused company operated a paper mill and had problems with its secondary effluent system polluting an adjacent river. Indiscussions with a senior official of the Ontario Ministry of the Environment, a program for improvement of the system was agreed to, tobe completed by a specified date.

The senior official indicated that if the program was not completed by the accused company by thespecified date, the Ministry would subject the accused to the probability of prosecution. The accused proceeded with the program;however, before the expiration of the period of grace the accused was charged. The Court stayed the proceedings as an abuse of process,holding that the conduct of the Crown in breaching the undertaking of one of its senior officers was vexatious, unfair and oppressive. AND, at line [200] “A similar fact situation existed in Western Pulp Ltd. Partnership v. British Columbia , [1988].

The Court found there to be a plainand unambiguous agreement between the accused company and provincial and environmental officials that no prosecution would belaunched while the company complied with the agreement during the currency of the agreement. The Court held that it was an abuse ofprocess for the Crown to launch a prosecution under the Fisheries Act during the currency of the agreement. And then Justice Richard lowers the guillotine at line 201: QUOTE “BHP is unable to rely on Abitibi Paper and Western Pulp, as these cases are distinguishable on the facts.

In the present case there wasno agreement by DFO not to prosecute. “Nonetheless, BHP submits that it was wrong for DFO (Captain Pearce) to suggest that there was a relationship between BHP'scooperation on the remediation steps and the likelihood of charges being laid. I agree. “On the evidence, I find that BHP did indeed cooperate and carry out various improvements to the channel and adjacent area, atconsiderable expense to BHP, at the request of DFO (including payment to graduate students to conduct studies on the channel).

I alsofind, however, that much of this work BHP would have had to do in any event, in compliance with the terms of the Authorization and theFish Habitat Compensation Agreement. “It was obviously in BHP's interest to cooperate with DFO's requests in the remediation program and the fish habitat enhancement

program. BHP did not want to be subjected to charges under the Fisheries Act . (and here it comes; wait for it ☺ It is regrettable that Captain Pearce, in using the language he did, conveyed the threat of prosecution in order to achieve cooperation. However, the fact that the Crown later decided in its discretion to proceed with prosecution of BHP for offences under the Fisheries Act does not make Captain Pearce's conduct

an act of state oppression or unfairness such as to amount to an abuse of the Court's process . UNQUOTE R. v. Canada Brick Ltd., [2005] OJ No. 2978 (SCJ) This case is similar, in that it is an OHSA matter and in its fact scenario. In his analysis, Justice Hill, at line 158, states: QUOTE “The trial court correctly accepted that Insp. Burke's attendance at the Canada Brick premises on March 8, 2000 in response to notification of the Ministry of Labour concerning the Aquino accident was an inspection authorized by law.

The government, in furtherance of its statutory mandate to monitor safe workplaces, was obliged to straightaway determine the circumstances of the reported industrial accident in order to ascertain whether it was the result of non-compliance with the Act or Regulations and if so, to take the necessary and timely steps to protect other workers from a similar mishap. To this end, on March 8, 2000, Insp.

Burke properly exercised the panoply of warrantless powers conferred by s.54(1) of the O.H.S.A. in an effort to learn how the accident occurred, whether it was the product of a preventable hazard, and what remedial action, if any, was required. In a matter of a couple of hours, Insp. Burke concluded that the unguarded walkway in the path of the moving head of the dehacker machine amounted to an unreasonably dangerous location for workers.

He issued a stop work order being of the view, pursuant to ss.57(1)(6) of the Act , that a contravention of the Act or Regulations existed constituting "a danger or hazard to the health or safety" of workers. I do not agree with Mr. Crocker that in every case it necessarily follows that an inspector's action under s.57(1)(6) means reasonable grounds then exist, or should be imputed, for believing an offence has been committed.

Simply because a provision of the Act or Regulations is being contravened does not, for example, automatically mean that the inspector knows who is responsible for the contravention or the entire scope of how the unsafe work conditions came to exist which might, when known, require additional abatement directions.” UNQUOTE When related to this case, the analogy would be that Inspector Roy on June 22, 2011 may not have been ready to say how the unsafe work conditions came to exist, or who should be charged. R. v.

Jarvis, 2002 SCC 73 In this case, the decision was given jointly by Justices IACOBUCCI AND MAJOR JJ. -- They begin by asking, and I quote: “Is there a distinction between the Canada Customs and Revenue Agency's ("CCRA") audit and investigative functions under the Income Tax Act ? If it is indeed correct to draw such a distinction, when does the CCRA exercise its audit function, and when does it exercise its investigative function? Finally, what are the legal consequences for the taxpayer when the CCRA exercises its investigative function?

Ultimately, we conclude that compliance audits and tax evasion investigations must be treated differently. While taxpayers are statutorily bound to co-operate with CCRA auditors for tax assessment purposes (which may result in the application of regulatory penalties), there is an adversarial relationship that crystallizes between the taxpayer and the tax officials when the predominant purpose of an official's inquiry is the determination of penal liability.

When the officials exercise this authority, constitutional protections against self- incrimination prohibit CCRA officials who are investigating ITA offences from having recourse to the powerful inspection and requirement tools in ss. 231.1(1) and 231.2(1). Rather, CCRA officials who exercise the authority to conduct such investigations must seek search warrants in furtherance of their investigation.” UNQUOTE It is always interesting to the Court when both counsel reference the same case. Something has to give. (PAUSE)

In our case, it was virtually predetermined that there would be an investigation. With a critical injury at the scene, an investigation is expected. Defence counsel would have the court believe that there was a purposeful approach used intentionally by the Inspector to put the defendant at ease, and then later POUNCE on him. (I apologize, but this is the way it was presented to the Court.) So, when defence counsel grilled the Inspector about whether he knows what the “Jarvis Test” is, I was just glad that it wasn’t me he was asking; that I had time to look it up.

Thankfully, Madam Crown provided the case as one of her authorities. And why not? I agree with her that the situation we have here is definitely much different than the one in Jarvis . The Canada Revenue Agency is a lot scarier than Inspector Roy! The learned Justices conclude with: QUOTE “ Whether or not a given inquiry is auditorial or investigatory in nature is a question of mixed fact and law. It involves subjecting the facts of a case to a multi-factored legal standard ( Canada (Director of Investigation and Research) v.

Southam Inc. , [1997] and, accordingly, Judge Fradsham's finding is not immune from appellate review. In our view, although Goy-Edwards's conduct throughout her dealings with the appellant and his accountant was not praiseworthy -- and at points appears deceptive -- we do not think that the record rises to support a finding that she obtained information under ss. 231.1(1) and 231.2(1) while conducting an investigation, the predominant purpose of which was a determination of Jarvis's penal liability.

While Goy-Edwards did on several occasions mislead the appellant and his accountant as to the status of the file, she did not use misleading tactics in order to obtain information under ss. 231.1(1) and 231.2(1) for the purpose of advancing an investigation into penal liability. …In brief, Goy-Edwards should undoubtedly have been truthful when asked about the status of the appellant's file, but there is no evidence to show that she used her audit powers to obtain information for prosecutorial purposes.

I find similarly in this case. ___________________________________________________________ Defence counsel in his summation conceded that the onus is on them to prove that the Inspector lied. I agree, and I find that they did not meet that onus. I respectfully disagree with his characterization of the Inspector and his testimony. The court must also consider that due to his limited experience in these types of matters on a worksite at the time of the accident, the demeanour that counsel refers to as evidence of inability to tell the truth could actually be an inability to admit to his inabilities at that time.

That is, he was not sure what he should say to Mr. Secco at that point in time. Secondly, Mr. Secco tells the court that he would have appealed the order, if he knew that he would be charged. This, in itself, is not proof that there was an agreement between him and Inspector Roy. There is no direct evidence before the court that Mr. Secco was told by Inspector Roy that he would not be prosecuted. The words we heard were: “our branch is different up here. I know in southern Ontario they fine, fine, fine.

But we don’t do that here.” Based on the context, the Court considers that the Inspector Roy might just as easily have been saying: “We don’t jump to conclusions the first day, before we do a complete investigation.” As Justice Martin of the Court of Appeal said in R. v. Belair : And I quote: “The public has an interest in charges being properly tried. In the circumstances, the trial of this charge would not offend the community's sense of fair play and decency. On the contrary, staying the proceedings would, in my view, offend the community's sense of justice.

This is not a case where the doctrine of abuse of process is properly invoked.” UNQUOTE

For these reasons, I would deny the application for an order for a stay of proceedings for an abuse of process. HOW WOULD YOU CARE TO PROCEED FROM HERE, COUNSEL? Released: October 21, 2013 Signed: “Justice of the Peace John H. Guthrie”