Albon v. The Attorney General of Ontario, 2017 ONSC 7015

CITATION: Albon v. The Attorney General of Ontario, 2017 ONSC 7015 Divisional Court File No.: 541/16 DATE: 20171127 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Bradley John Albon, Respondent/Responding Party on Motion under Appeal AND: The Attorney General of Ontario, Appellant/Moving Party on Motion under Appeal BEFORE: Spies, M.G.J. Quigley and Matheson JJ.

COUNSEL: Daniel Guttman and Alexander Alvaro, for the Appellant Alan Young and Golnaz Nayerahmadi, for the Respondent HEARD at Toronto: November 21, 2017 ENDORSEMENT BY THE COURT: [ 1 ] This appeal arises from a motion brought by The Attorney General for Ontario (“AGO”) to strike out an application brought by Mr. Albon. [ 2 ] In 1986, Mr. Albon pled guilty to a charge of manslaughter at the age of 17 in connection with the death of a teenaged girl in the Brantford area.

He has served his sentence. [ 3 ] In 2012, the Innocence Project undertook a re-investigation of his conviction, giving rise to this application among other steps. Mr. Albon maintains that he is innocent of the crime and that he was wrongly convicted. For about five years, the Innocence Project has been attempting to obtain disclosure of police investigation records of his case to obtain the evidence that it is believed will support his claim that he was wrongly convicted.

While some records from that investigation have been produced, it is claimed there are some 75 to 80 further documents known to exist, which the state authorities have been unwilling to produce. The AGO disputes this position and claims that all documents still in its possession have been produced. [ 4 ] In his application, Mr. Albon seeks a declaration that the protection of the innocent is a principle of fundamental justice within s. 7 of the Canadian Charter of Rights and Freedoms , among other relief. That declaration is sought as a foundation to permit Mr.

Albon, and others like him, to come to the Superior Court to obtain production orders under s. 24(1) of the Charter . They expect such production orders, if and where issued on a case-by-case basis, would require state authorities to disclose all of the investigative records in their possession in any particular case. The goal is to ensure that all evidence and records be produced that could assist persons who believe they were wrongly convicted, to enable them to advance their efforts to exonerate themselves.

It is apparent that this is an important application that has potentially significant constitutional ramifications. [ 5 ] The application record that was before the motions judge consists of four dense volumes of material said to support Mr. Albon’s innocence of the crime for which he was convicted. The AGO resists this application on a number of grounds, including an absence of standing, prematurity because of a failure to exhaust alternative remedies and other grounds.

The AGO therefore brought a motion to strike out the application. [ 6 ] The AGO’s motion to strike out the application was dismissed by order of Pollak J. dated October 24, 2016. Leave to appeal that order was granted on February 20, 2017: Albon v. Ontario (Attorney General), 2017 ONSC 1250 . [ 7 ] As indicated in the leave to appeal motion, the main ground of appeal is insufficiency of reasons. The motion judge’s reasons for decision are found in one paragraph of a short endorsement.

The endorsement sets out the background briefly, the positions taken by the parties and the test for a motion to strike out a claim as disclosing no cause of action. There is then one paragraph in which the motions judge gives her reasons for dismissing the AGO’s motion. It reads as follows: I agree with the submissions of the Applicant that the AGO has not met the criteria for this motion which I have set out above.

While it may be that the AGO has many valid arguments on the merits of the Application, I do not find that it is "plain, obvious and beyond doubt" that the application could not succeed. [ 8 ] The motions judge’s decision contains no reasons for decision relating to the potentially significant issues of standing and prematurity that were raised by the AGO in its motion.

[9] The leave judge set three issues for the appeal: 1) Does Mr. Albon lack standing for certain aspects of his application? 2) Should Mr. Albon’s application be dismissed because it is premature as the relief sought is potentially available through analternate route (i.e., through s. 683 or 696.1 of the Criminal Code)? 3) Is it “plain and obvious” that convicted offenders who have fully served their sentence do not have a s. 7 Charter right to “orders ofproduction”? Disposition of the appeal [10] The overarching ground of appeal is that the reasons for decision of the motions judge were insufficient.

In turn, the AGOappeals the disposition of the motions judge, dismissing its motion to strike out the application. [11] The respondent does not dispute the insufficiency of the reasons for decision. [12] As held by the Supreme Court of Canada in Hill v. Hamilton-Wentworth, 2007 SCC 41, reasons for decision must besufficient so that the parties know why they won or lost on the issues argued so as to satisfy the parties’ “functional need to know.” And, significantly in this case, the reasons must also be adequate to permit meaningful appellate review: Sahota v. Sahota, (ONSC DC), at para. 6, citing R. v.

Sheppard, 2002 SCC 6; Diamond Auto Collision Inc. v. Economical Insurance Group, 2007ONCA 487 and Banco Internacional de Comercio S.A. v. B&B Finance Ltd., 2013 ONSC 3002 (Div. Ct.). [13] While acknowledging that the endorsement by the motions judge refers to the "plain and obvious test", that reference wasconclusory and not explanatory. The reasons for decision provide no analysis of why that test was not met in this case and no reasons atall regarding the implicit dismissal of the standing and prematurity issues.

While reasons for decision need not be lengthy, there must beat least some analysis of the key questions in issue. [14] The application has, as its central issue, a constitutional question. The motion to strike also brought forward issues regardingstanding and prematurity that required an analysis on the extensive factual record as well as the merits. There are no reasons for decisionupon which the agreed standard of review, as set out in Housen v. Nikolaisen, 2002 SCC 33, can usefully be applied. The reasons fordecision do not allow for meaningful appellate review.

The appeal must therefore be granted. [15] The main issue before us was what remedy would be appropriate. The parties agree that we have the jurisdiction to send thematter back to be heard afresh before a single judge of the Superior Court, or we could hear the appeal on its merits: Sahota v. Sahota, atpara. 9, e.g., College of Physicians and Surgeons of Ontario v. Noriega, 2012 ONSC 4084. The appellant does not argue strenuously forone path in preference to the other.

The respondent’s concern is delay, although he agreed that the issue of delay would be assisted byan endorsement from this Court requesting that the re-hearing of the motion be expedited. [16] The respondent also submits that the issues on the motion are essentially issues of law, which could more readily be addressedwithout the benefit of reasons for decision than factual determinations. We accept that there may be little deference for some of theissues on the motion.

However, at least the issues regarding standing and prematurity may require factual determinations based on anextensive record as well as legal analysis. If we were to proceed, it would not be an appeal at all. It would be a fresh consideration ofthe motion at the appellate level. [17] Two other issues were raised, both of which favour a fresh hearing before a single judge. First, the appellant seeks to raisetwo more issues on this appeal that were not the subject of the leave application.

Second, the respondent is considering an amendment tonarrow the scope of his application to his own circumstances, seeking a production order specific to his case as part of this application,rather than proceeding for a more general declaration. [18] We conclude that the motion should be sent back for a fresh consideration by a single judge of the Superior Court. [19] We therefore grant the appeal, quash the decision of the motions judge and order that the motion be re-heard by a differentjudge of the Superior Court.

We request that the civil motions office facilitate the setting of an expedited hearing date in thecircumstances in order that this constitutional application is heard as soon as possible. We further permit the parties to make anychanges to the application and motion that are otherwise permitted under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as if thematter had not yet been heard. _______________________________ Spies J. _______________________________ M.G.J. Quigley J. _______________________________

Matheson J. Date: November 27, 2017 CITATION: Albon v. The Attorney General of Ontario, 2017 ONSC 7015 Divisional Court File No.: 541/16 DATE: 20171127 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: RE: Bradley John Albon, Respondent/Responding Party on Motion under Appeal AND The Attorney General of Ontario, Appellant/Moving Party on Motion under Appeal BEFORE: Spies, M.G.J. Quigley and Matheson JJ. COUNSEL: Daniel Guttman and Alexander Alvaro, for the Appellant Alan Young and Golnaz Nayerahmadi, for the Respondent HEARD: November 21, 2017 ENDORSEMENT Spies J. Quigley J. Matheson J. Released: November 27, 2017