CITATION: Ontario (Electrical Safety Authority) v. Broomfield, 2018 ONCJ 640 DATE: September 19, 2018

IN THE MATTER OF

the Electricity Act, 1998, S.O. 1998, c. 15, Schedule A

and

the Licensing Of Electrical Contractors And Master Electricians Regulation

(Electricity Act, 1998), O. Reg. 570/05

Between

Her Majesty the Queen in Right of Ontario

(Electrical Safety Authority)

prosecutor

and

Paul Broomfield

defendant

Ontario Court of Justice

Brampton, Ontario

Quon J.P.

Reasons for Judgment

Charge: “operate an electrical contracting business without holding a valid electrical contractor license”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, and did thereby commit an offence under s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A.

Trial held:

January 25 and 26, 2017;

 

February 1 and 2, 2017;

 

June 28 and 29, 2017;

 

September 7, 2017;

 

October 24, 2017;

 

November 1, 2017;

 

November 23, 2017;

 

March 8, 2018; and

 

May 2, 2018.

Ruling on abuse of process application

 

and written judgment released on:

September 19, 2018.

Counsel:

Ian Johnston, Phillip Wright, and David Cowling, counsel for the Electrical Safety Authority.

Paul Broomfield, self-represented until he retained legal counsel for the November 23, 2017; March 8 and May 2, 2018, trial dates.

David North, legal counsel for the defendant, appeared on the November 23, 2017; March 8 and May 2, 2018, trial dates.

2018 ONCJ 640 (*)

Cases Considered Or Referred To:

Maves v. Grand Trunk Pacific Ry. Co., [1913] A.J. No. 53 (Alta. C.A.).

R. v. 974649 Ontario Inc., [2001] S.C.J. No. 79 (S.C.C.).

R.v. Albright, [1987] S.C.J. No. 56 (S.C.C.). R. v. Biddle, [1995] S.C.J. No. 22 (S.C.C.).

R. v. Chamandy, [1934] O.J. No. 235 (Ont. C.A.), per Latchford, C.J., Riddell and Macdonnell, JJ.A.

R. v. Cyr, [2012] O.J. No. 6148 (Ont. C.A.), per Weiler, Watt and Epstein JJ.A.

R.v. Deslauriers, [1992] M.J. No. 502 (Man. C.A.). R. v. deKock, [2009] A.J. No. 628 (Alta. C.A.).

R. v. Fitzpatrick, [1995] S.C.J. No. 94 (S.C.C.). R v Handy, [2002] S.C.J. No. 57 (S.C.C.).

R. v. K.T. (2013), 295 C.C.C. (3d) 283 (Ont. C.A.), per Juriansz, Watt and Epstein JJ.A. R. v. Levogiannis, [1993] S.C.J. No. 70 (S.C.C.)

R. v. Papasotiriou-Lanteigne, [2018] O.J. No. 3116 (Ont. S.C.), per Goldstein J.

R. v. Sanderson, [2017] O.J. No. 2986 (Ont. C.A.), per Feldman, Gillese and Pepall JJ.A. R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.).

R. v. Seaboyer; R. v. Gayme, [1991] S.C.J. No. 62 (S.C.C.). R. v. Sekhon, [2014] S.C.J. No. 15 (S.C.C.).

R. v. Sunjka, [2006] O.J. No. 2204 (Ont. C.A.), per Goudge, Gillese and LaForme JJ.A. R. v. T.B., [2009] O.J. No. 751 (Ont. C.A.), per Moldaver, Borins and Blair JJ.A.

R. v. Taillefer; R. v. Duguay, [2003] S.C.J. No. 75 (S.C.C.).

R. v. Tossounian, [2017] O.J. No. 3842 (Ont. C.A.), per Juriansz, Pepall and Trotter JJ.A. R. v. W.(D.), [1994] S.C.J. No. 91 (S.C.C.).

R. v. White, [1999] S.C.J. No. 28 (S.C.C.).

Rule in Browne v. Dunn (1893) 6 R. 67 (H.L.).

Cases On Abuse Of Process:

Boucher v. The Queen, [1954] S.C.J. No. 54 (S.C.C.).

2018 ONCJ 640 (*)

Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.).

R.v. Anderson, [2014] S.C.J. No. 41 (S.C.C.). R. v. Babos, [2014] S.C.J. No. 16 (S.C.C.).

R. v. Bellusci, [2012] 2 S.C.R. 509 (S.C.C.). R. v. Bjelland, [2009] 2 S.C.R. 651 (S.C.C.).

R. v. Boudreau, [2012] O.J. No. 5597 (Ont. C.A.), per MacPherson, Cronk and Blair JJ.A. R. v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.).

R. v. I.B., [2014] O.J. No. 3786 (Ont. C.J.), per Otter J. R. v. Jewitt, [1985] S.C.J. No. 53 (S.C.C.).

R. v. Keyowski, [1988] 1 S.C.R. 657 (S.C.C.).

R. v. Mallory, [2007] O.J. No. 236 (Ont. C.A.), per Sharpe, Simmons and Lang JJ.A. R. v. Nixon, [2011] S.C.J. No. 34 (S.C.C.).

R. v. O'Connor, [1995] 4 S.C.R. 411 (S.C.C.). R. v. Regan, [2002] 1 S.C.R. 297 (S.C.C.).

R. v. Waugh (1985), 68 N.S.R. (2d) 247 (N.S.C.A.).

R. v. Zarinchang, [2010] O.J. No. 1548 (Ont. C.A.), per O'Connor A.C.J.O., Armstrong and Epstein JJ.A.

United States of America v. Cobb, [2001] 1 S.C.R. 587 (S.C.C.).

Cases On A Right To A Fair Trial:

R. v. Bjelland, [2009] 2 S.C.R. 651 (S.C.C.).

R.v. Harrer, [1995] S.C.J. No. 81 (S.C.C.). R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.).

R. v. Rain, [1998] A.J. No. 1059 (Alta. C.A.), per Irving, Hunt and Sulatycky JJ.A.

Cases On Evidence Elicited From An Accused On The Credibility Of Prosecution Witnesses:

R. v. A.J.R., [1994] O.J. No. 2309 (Ont. C.A.), per Osborne, Doherty and Laskin JJ.A. R. v. Daley, [2007] S.C.J. No. 53 (S.C.C.).

R. v. Gonzague, [1983] O.J. No. 53 (Ont. C.A.), per Martin, Goodman and Robins JJ.A.

2018 ONCJ 640 (*)

R. v. Khan, [2011] B.C.J. No. 1776 (B.C.C.A.).

R. v. Logiacco, [1984] O.J. No. 15 (Ont. C.A.), per Dubin, Goodman and Cory JJ.A.

R. v. Rose, [2001] O.J. No. 1150 (Ont. C.A.), per Charron, Feldman and MacPherson JJ.A.

R. v. Vandenburge, [1995] O.J. No. 243 (Ont. C.A.), per Houlden, McKinlay and Labrosse JJ.A.

Cases On Counsel Asking Leading Questions Of Their Own Witness:

R. v. Rose, [2001] O.J. No. 1150 (Ont. C.A.), per Charron, Feldman and MacPherson JJ.A.

Cases On The Admissibility Of Investigative Hearsay:

R. v. Dhillon, [2002] O.J. No. 2775 (Ont. C.A.), per Weiler, Laskin and Goudge JJ.A. R. v. Spackman, [2012] O.J. No. 6127 (Ont. C.A.), per Laskin, Feldman and Watt JJ.A.

Cases On Lay Opinion Evidence Of An Investigator:

R. v. Jenkins, [2018] O.J. No. 965 (Ont. S.C.), per Edwards J.

Cases On Role of Crown Prosecutors:

Boucher v. The Queen, [1954] S.C.J. No. 54 (S.C.C.).

R. v. Bain, [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481 (S.C.C.).

R. v. Daly, [1992] O.J. No. 1504 (Ont. C.A.), per Morden A.C.J.O., Osborne and Doherty JJ.A. R. v. Felderhof, [2003] O.J. No. 4819 (Ont. C.A.), per Carthy, Doherty and Rosenberg JJ.A.

R. v. Henderson, [1999] O.J. No. 1216 (Ont. C.A.), per McMurtry C.J.O., Finlayson, Osborne, Labrosse and Charron JJ.A.

R. v. Stinchcombe, [1991] S.C.J. No. 83 (S.C.C.).

R.v. Yakeleya, [1985] O.J. No. 144 (Ont. C.A.), per Martin, Zuber and Finlayson JJ.A. Skogman v. The Queen, [1984] 2 S.C.R. 93, 13 C.C.C. (3d) 161 (S.C.C.).

Cases On Prosecutors Misconduct:

Boucher v. The Queen, [1954] S.C.J. No. 54 (S.C.C.).

Elzein v. The Queen, [1982] QCCA 454, 1982 CarswellQue 771, JE 82-710 (Que. C.A.). Landolfi v Fargione, [2006] O.J. No. 1226 (Ont. C.A.), per Doherty, Cronk and MacFarland JJ.A.

2018 ONCJ 640 (*)

Moubarak v. The Queen, [1982] J.Q. no 471 (Que. C.A.).

Pisani v. The Queen, [1971] S.C.R. 738, (1970), 1 C.C.C. (2d) 477 (S.C.C.).

R. v. Ahluwalia, [2000] O.J. No. 4544 (Ont. C.A.), per Osborne A.C.J.O., Doherty and Laskin JJ.A.

R. v. Boudreau, [2012] O.J. No. 5597 (Ont. C.A.), per MacPherson, Cronk and Blair JJ.A. R. v. C.(R.) (1999), 137 C.C.C. (3d) 87 (B.C.C.A).

R. v. Cavan, [1999] O.J. No. 4181, (Ont. C.A.), per Osborne A.C.J.O., Abella and MacPherson JJ.A. (ad hoc).

R. v. Charest (1990), 76 C.R. (3d) 63 (Que. C.A.).

R.v. Drover, [2000] N.J. No. 36 (N.L.C.A.).

R. v. Dvorak (2001), 156 C.C.C. (3d) 286 (B.C.C.A.).

R. v. Gratton, [1985] O.J. No. 36 (Ont. C.A.), per Dubin, Thorson and Cory JJ.A.

R. v. Henderson, [1999] O.J. No. 1216 (Ont. C.A.), per McMurtry C.J.O., Finlayson, Osborne, Labrosse and Charron JJ.A.

R. v. Labarre (1978), 45 C.C.C. (2d) 171 (Que. C.A.).

R. v. Logiacco, [1984] O.J. No. 15 (Ont. C.A.), per Dubin, Goodman and Cory JJ.A. R. v. Mallory, [2007] O.J. No. 236 (Ont. C.A.), per Sharpe, Simmons and Lang JJ.A. R. v. McDonald, [1958] O.J. No. 604 (Ont. C.A.), per Laidlaw, Lebel and Morden, JJ.A. R. v. McNeil, [2009] S.C.J. No. 3 (S.C.C.).

R. v. Michaud, [1996] 2 S.C.R. 458, 107 C.C.C. (3d) 193 (S.C.C.).

R. v. Munroe, [1995] O.J. No. 819 (Ont. C.A.), per Griffiths, Galligan and Austin JJ.A. R. v. Murphy (1981), 43 N.S.R. (2d) 676 (N.S.C.A.).

R. v. Nugent, [1995] O.J. No. 1838 (Ont. C.A.), per Finlayson, Abella and Austin JJ.A. R. v. Patrick, [2007] O.J. No. 1373 (Ont. S.C.), per Dambrot J.

R. v. Peavoy, [1997] O.J. No. 2788 (Ont. C.A.), per Doherty, Weiler and Moldaver JJ.A. R. v. Regan, [2002] S.C.J. No. 14 (S.C.C.).

R. v. Roberts, [2018] O.J. No. 2279 (Ont. C.A.), per Laskin, Miller and Paciocco JJ.A.

R. v. Robinson, [2001] O.J. No. 1072 (Ont. C.A.), per Rosenberg, Moldaver and Goudge JJ.A. R. v Romeo, [1991] 1 S.C.R. 86, 62 C.C.C. (3d) 1 (S.C.C.).

2018 ONCJ 640 (*)

R. v. Rose, [1996] O.J. No. 1554 (Ont. C.A.), per Dubin C.J.O., Brooke, Carthy, Osborne and Laskin JJ.A.

R. v. Rose, [1998] S.C.J. No. 81, [1998] 3 SCR 262 (S.C.C.).

R. v. Sweitlinski, [1994] 3 S.C.R. 481 (S.C.C.).

R. v. Trang, [2002] 7 W.W.R. 157, 311 A.R. 284 (Alta. Q.B.).

R.v. Trochym, [2007] S.C.J. No. 6 (S.C.C.).

R.v. Wise, [2002] B.C.J. No. 234 (B.C.C.A.), aff’d [2003] 1 S.C.R. 3 (S.C.C.). Tremblay v. The Queen (1963), 40 C.R. 303 (Que. C.A.).

Cases On Inappropriate Cross-Examination Of An Accused

R.v. Aalders, [1993] S.C.J. No. 67 (S.C.C.).

R. v. Dalen, [2008] B.C.J. No. 2455 (B.C.C.A.). R. v. Fanjoy, [1985] S.C.J. No. 55 (S.C.C).

R. v. Khan, [1998] B.C.J. No. 1450 (B.C.C.A.).

R. v. Lawrence, [2015] B.C.J. No. 1724 (B.C.C.A.). R. v. Lowe, [2009] B.C.J. No. 1470 (B.C.C.A.).

R. v. Varga, [1994] O.J. No. 1111 (Ont. C.A.), per Brooke, Labrosse and Doherty JJ.A.

Cases On Prosecutor Commenting On An Accused’s Failure To Cooperate With Investigators Or on An Accused’s Refusal To Answer Investigator’s Questions:

R.v. Clarke, [1979] N.S.J. No. 620 (N.S.C.A.). R. v. Noble, [1977] 1 S.C.R. 874 (S.C.C.).

R. v. Schell, [2000] O.J. No. 3633 (Ont. C.A.), per Rosenberg, MacPherson and Sharpe JJ.A. R. v. Marcoux, [1975] S.C.J. No. 54 (S.C.C.).

R. v. Turcotte, [2005] S.C.J. No. 51 (S.C.C.).

Cases On Prosecutor Adducing Evidence Bad Character In Regards To An Accused’s Lifestyle:

R.v. Chambers, [1990] S.C.J. No. 108 (S.C.C.). R. v. G. (1994), 90 C.C.C. (3d) 97 (B.C.C.A.).

2018 ONCJ 640 (*)

R.v. G.(S.G.), [1997] S.C.J. No. 70 (S.C.C.).

R.v. Lawrence, [2015] B.C.J. No. 1724 (B.C.C.A.).

Cases On Role of Trial Judge In Trials With Unrepresented Accused:

Boucher v. The Queen, [1954] S.C.J. No. 54 (S.C.C.).

Brouillard v. The Queen (1985), 17 C.C.C. (3d) 193 (S.C.C.).

R. v. Gendreau, [2011] A.J. No. 991 (Alta. C.A.).

R. v. Henderson, [1999] O.J. No. 1216 (Ont. C.A.), per McMurtry C.J.O., Finlayson, Osborne, Labrosse and Charron JJ.A.

R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.), per Griffiths, Grange and Goodman JJ.A.

R.v. Moghaddam, [2006] B.C.J. No. 567 (B.C.C.A.).

R. v. Tran, [2001] O.J. No. 3056 (Ont. C.A.), per Weiler, Austin and Borins JJ.A.

Cases On How Trial Judge Can Deal With Misconduct Of Legal Counsel In A Trial:

Groia v. Law Society of Upper Canada, [2018] S.C.J. No. 27 (S.C.C.).

R.v. Anderson, [2014] S.C.J. No. 41 (S.C.C.).

Cases On Ordering Costs Against The Prosecution:

R. v. 974649 Ontario Inc., [2001] S.C.J. No. 79 (S.C.C.).

Statutes, Regulations and Rules Cited:

Bill 70 (Ministry of Consumer and Business Services Statute Law Amendment Act, 2004, S.O. 2004, c. 19).

Business Names Act, R.S.O. 1990, c. B.17, s. 2(3).

Canadian Charter of Rights and Freedoms, ss. 7, and 24(1).

Electrical Safety Authority Regulation (Electricity Act, 1998), O. Reg. 89/99, s. 1. Electrical Safety Code (Electricity Act, 1998), O. Reg. 164/99, rule 2-000. Electrical Distribution Safety Regulation (Electricity Act, 1998), O. Reg. 22/04.

Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, ss. 1, 1(f), 113.2(1), 113.13(4)(b), 113.13(6), 113.13(7), 113.20(1)(d), 113.20(7), and Part VIII.

2018 ONCJ 640 (*)

Law Society of Ontario’s Rules of Professional Conduct, s. 5.1-3.

Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, ss. 1(1), 2, 2(10), 3, 4, 8, 9, and 33(2).

Provincial Offences Act, R.S.O. 1990, c. P.33, s. 34.

Reference Material Considered or Cited:

Van Duzer, J.A. The Law of Partnerships and Corporations, 2nd. ed. (Toronto, Canada: Irwin Law Inc., 2003), pp. 86 to 88.

Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th Ed., § 14.140.

Paciocco, D.M. and Steusser, L. The Law of Evidence, 6 ed. (Toronto, Ontario: Irwin Law Inc., 2011), pp. 2, 3, 4, 29, 30, 42, 43, 52-54, 105, 118, 183, 223, 416-417, 500-501.

Exhibits entered:

Exhibit "1" - copy of a SAP Notification Printout document (printed on Jan. 11, 2016) which states that the notification date was July 18, 2014, indicating a “Z7” hazard investigation was required to be conducted at 22 Vespahills Cres., Brampton, and that there had been an attendance at the location on July 21, 2014, by ESA Inspector Shaun Smith, which is contained in TAB 13, pages 043 and 044, of the Prosecution’s Book of Documents. Page 043 states that “NO PERMITS IN OUR SYSTEM FOR THIS WORK” and that Gary Corbett has been notified and that a permit had been taken out by LEC on AUG. 13 2014. Page 044 list the defects for 22 Vespahills Cres., Brampton, which includes “Only a Licensed Contractor can take out a notification and complete this work”. (2 pages).

Exhibit "2" - copy of a “Notification” document dated July 18, 2014, that was sent by ESA Inspector Shaun Smith to Paul Broomfield, PB Construction, 1329 Martin Grove Road, Rexdale, Ontario indicating there is no permit in the ESA system for 22 Vespahills Cres., Brampton, and that Paul Broomfield’s company (PB Construction) is not licenced by ECRA/ESA to perform electrical work. The notification also indicates that Shaun Smith conducted the inspection of 22 Vespahills Cres. was done by Shaun Smith on July 21, 2014. The notification also informs Paul Broomfield to stop all electrical work immediately and leave the installation in a safe condition. This notification document is contained in TAB 14, pages 045, 046, 047, of the Prosecution Book of Documents (3 pages).

Exhibit "3" - copy of a SAP Notification Printout document dated Jan. 11, 2016, sent to JAY POWER SYSTEMS INC. at 32 Westowanis Dr., Etobicoke indicating a permit had been taken out for the residential house at 22 Vespahills Cres., Brampton, Ontario, which is contained in TAB 15, pages 048 and 049 of the Prosecution’s Book of Documents (2 pages).

Exhibit "4" - photograph of the residential house that is located at 22 Vespahills Crescent, Brampton, which is contained in TAB 17, page 051, of the Prosecution’s Book of Documents (1 page).

Exhibit "5" - copy of P & B Construction Business Card, which is contained in Tab 1 (Pages 001 and

002)of the Prosecution’s Book of Documents. The front of the business card has the defendant’s name “Paul Broomfield” printed under the business name of “PB Construction”. It also states the address of the business is at 1329 Martin Groove Road, Rexdale – Etobicoke ON M9W 4X5 and a telephone number of (647) 839 -9096. The back of the business card states “Renovations”, “Commercial”, “Residential”, “Tiles & Drywall”, and “Electrical” (2 pages).

2018 ONCJ 640 (*)

Exhibit "6" - copy of handwritten document of an agreement between Ahmed Khan and Paul Broomfield dated September 9, 2013, detailing additional work for 291 Boon Avenue, Toronto, that was not part of the original agreement dated March 24, 2013, as well as work to be deleted from the original agreement, which is contained in Tab 3, page 008, of the Prosecution’s Book of Documents (1 page).

Exhibit "7" - copy of handwritten document containing WSIB number and Gore Mutual Insurance policy number, which is contained in Tab 3, page 009, of the Prosecution’s Book of Documents (1 page).

Exhibit "8" - Copies of 14 cheques with 12 cheques payable to P and B Construction; 1 cheque payable to Paul Broomfield; and 1 cheque payable to Ahmed Khan re: drywall, which are contained in Tab 4, pages 010 to 022, of the Prosecution’s Book of Documents (13 pages).

Exhibit "9" - copy of Excel spreadsheet document with a list of payments or advances totaling $115,900 paid to Paul Broomfield, which is contained in Tab 4, page 023, of the Prosecution’s Book of Documents (1 page).

Exhibit "10" - copy of Wiztronic Inc. invoice document for rewiring of house and for electrical work performed at 291 Boon Ave., Toronto for the amount of $1695.00 ($1500 and HST of $195) addressed to Hensey Khan, dated Jan. 16, 2014, which is contained in Tab 5, page 024 of the Prosecution’s Book of Documents. The invoice also indicates that Wiztronic Inc. of 198 Cabana Drive, Toronto is an “Electrical & Communication Contractor”. The invoice document has handwriting that states, “See sheet 192 for scope of work done on house” and “Run new wires in attic for lighting.” (1 page).

Exhibit "11" - copy of two-page document showing itemized work done by WIZTRONIC Inc., a “Electrical

&Communication Contractor” for residential, commercial, and industrial, that is part of the Wiztronic Inc. invoice dated Jan. 16, 2014, for electrical work performed at 291 Boon Ave., Toronto, Ontario, which is contained in Tab 5, pages 025 and 026 of the Prosecution’s Book of Documents. The two-page document lists the itemized work performed at 291 Boon Ave., Toronto as: (1) Installation of 200 amp panel, (2) Wiring of basement washroom, (3) Installing 8 plugs in basement, (4) Installing 15 pot lights in basement, (5) Washer circuit, (6) Dryer circuit, (7) Furnace Circuit, (8) Hot Water tank circuit, (9) Lights and Utility room (10) stairwell light, (11) smoke detector circuit, (12) stove circuit, (13) Refrigerator circuit, (14) dishwasher circuit, (15) countertop circuit, (16) Range hood circuit, (17) Install 26 pot lights, (18) outside front and rear lights, (19) Feeder circuits for upstairs (6). Page 026 of the document also stated, “Removed all old wiring”. (2 pages).

Exhibit "12" - copy of renovation contract between Paul Broomfield and P & B Construction (contractor) of an address of 1534 Evenside Cres., Mississauga, and Ahmed Khan (owner) of 291 Boon Ave., Toronto, Ontario which is contained in Tab 2 of the Prosecution Book of Documents (pages 003 to 007). The contract is dated March 20, 2013 and signed by Paul Broomfield and Ahmed Khan on March 24, 2013. In addition the contract states that the Contract price is $87,000.00 inclusive of HST. The contract also states that “Unless otherwise stated, the Contractor agrees to supply all materials, labour and supervision to perform the WORK. Under the heading “Sub trades” in handwriting, the parties agreed that “As per contractor all trades work for him and he wont Subcontract any work. All work top to bottom are guaranteed as warranted by P and B Construction for one year Part and Labour”. However, the contract does not specifically refer to doing any electrical work and only specifically mentioned demolishing “all three floors inside complete, garbage and clean including cast iron, and existing heating system, electrical, plumbing, all drywalls, ceilings etc. nothing is excluded. Remove existing kitchen cabinets to be installed in kitchenette downstairs”. (5 pages).

Exhibit "13" - copy of ESA printout documents of ESA inspections of 291 Boon Avenue, Toronto, prepared by ESA Inspector Timothy Berry, indicating a notification date of September 26, 2014, with a listing of defects which is contained in Tab 8, pages 032 to 036 of the Prosecution’s Book of Documents (5 pages).

Exhibit "14" - copy of document entitled “General Inspection” prepared by ESA Inspector Timothy Berry indicating a notification date as September 30, 2014, that indicates that Ahmed Khan of 291

2018 ONCJ 640 (*)

Boon Avenue, Toronto, had contacted ESA about having hired someone to do electrical work with no permit, which is contained in Tab 6, page 027 of the Prosecution’s Book of Documents (1 page).

Exhibit "15" - copy of a document with the heading, “ElecCheck Inspection”, indicating a notification date as September 30, 2014, prepared by ESA Inspector Timothy Berry, which lists dates of inspections and defects in the electrical work at 291 Boon Avenue, Toronto, which is contained in Tab 7, pages 028 to 031 of the Prosecution’s Book of Documents (4 pages).

Exhibit "16" – copy of “Credit Voucher – Non Negotiable” for the amount of $20,000 that is dated August 8, 2011, that was issued to Paul Broomfield from Razeka Bacchus, Tab 12, page 042 of the Prosecution’s Book of Documents (1 page).

Exhibit "17" – copy of affidavit of Scott Eason, ESA Project Coordinator, Contractor Licencing, sworn on January 8, 2016, and addressed to ESA Investigator Gary Corbett, stating that he had done a search of ESA records on January 6, 2015 at 9:55 a.m. and that the ESA records indicate that Paul Broomfield is not registered as a Licenced Electrical Contractor with the ESA and had never been registered since January 2, 2007. (1 page)

Exhibit "18" - copy of “Business Names Report” for “P & B Construction”, printed on March 2, 2013, at 14:31:31, which is found in Tab 16, page 050, of the Prosecution’s Book of Documents. The report states that a business named P & B Construction (B.I.N.: 220191787) had been registered on February 21, 2012, under the Business Names Act as a general partnership. It also indicates that the principal place of business in Ontario for P & B Construction is 32 Pebblestone Circle, Brampton, Ontario, and its activity carried out is stated as construction. The report also indicates that the registration would expire on February 20, 2017 (1 page).

Exhibit "19" - copy of invoice document for electrical work issued to Ahmed Khan of 291 Boon Ave., Toronto, from VK Electric Services of Oakville Ontario dated November 17, 2014, for the amount of 4135.80 (which includes $200 for ESA permit and inspection), which is contained in Tab 10, page 039 of the Prosecution’s Book of Documents (1 page).

Exhibit "20" - copy of “SAP Notification printout” document, prepared by ESA Inspector Timothy Berry for 291 Boon Ave., Toronto, indicating a notification date of October 3, 2014 and a completion date of November 17, 2014, and also indicating that the licenced electrical contractor had completed the defects inside the house, which is contained in Tab 9, pages 37 and 38 of the Prosecution’s Book of Documents (2 pages).

Exhibit "21" – original affidavit of Scott Eason, ESA Project Specialist, Contractor Licencing, sworn on June 21, 2017, and addressed to ESA Investigator Gary Corbett, stating that he had done a search of ESA records on June 21, 2017 at 8:43 a.m. into the names “Ken Roy”, “Roy Ken”, or “Kenroy” and did not find anyone with those names in the ESA records that are registered as a Licenced Electrical Contractor with the ESA and those names have never been registered since January 1, 2007 (1 page).

2018 ONCJ 640 (*)

 

 

Table of Contents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Paragraph

 

 

 

 

 

 

No.

(*)

1. INTRODUCTION

 

 

1

 

 

 

 

 

 

 

640

2. THE CHARGES

 

 

13

 

 

 

 

 

 

3. BACKGROUND

 

 

 

ONCJ

 

 

 

 

 

 

 

 

 

(A) SUMMARY OF THE FACTS

 

 

14

2018

 

 

 

 

 

 

(B) HISTORY OF THE PROCEEDINGS

 

 

43

 

 

 

 

 

 

 

 

4. APPLICABLE LAW

 

 

62

 

 

 

 

 

 

 

 

5. ISSUES

 

 

 

 

71

 

 

 

 

 

 

6. ANALYSIS AND DECISION

 

 

 

 

 

 

 

(A) PROSECUTION’S APPLICATION TO AMEND THE START DATE FOR

75

 

THE CHARGE IN COUNT #3

 

 

 

 

 

 

 

(B) THE ABUSE OF PROCESS APPLICATION

 

 

 

 

 

 

 

 

(1) The Position Of The Parties

 

 

 

 

 

 

 

 

 

(a) The defendant’s position

 

 

79

 

 

 

 

 

 

(b) The prosecution’s position

 

 

83

 

 

 

 

 

(2) The Abuse of Process Doctrine

 

87

 

 

 

 

 

(a)

The burden of proof for establishing an abuse of process.

91

 

 

 

 

 

 

 

(b)

The test for determining

whether a stay

of proceedings is

92

 

 

appropriate when there is an abuse of process.

 

 

 

 

 

 

(c)

Available remedies for an abuse of process.

 

97

 

 

 

 

 

 

(3) Provincial Offences Trials

 

 

 

 

 

 

 

 

 

(a) The purpose of a trial.

 

 

101

 

 

 

 

 

(b)

Provincial offences trials involving strict liability offences are, for the

 

 

 

most part, different from

criminal trials

substantively and

104

 

 

procedurally, especially in respect to the mental element to be

 

 

 

 

 

proven and in respect to evidential burdens of proof.

 

 

(i)

The present trial was not a jury trial.

 

106

 

 

 

 

 

 

(ii)

Trial judges are able to

disabuse their minds of irrelevant or

108

 

 

 

inadmissible prejudicial evidence.

 

 

 

 

 

 

 

(iii)

For strict liability offences, the prosecution

can elicit rebuttal

 

 

 

 

evidence during its case-in-chief which would anticipate the due

110

 

 

 

diligence defence or other defences being raised.

 

 

 

 

 

a) There is a duty in certain circumstances for a person to

 

 

 

 

 

 

produce documents and provide assistance and

118

 

 

 

 

 

information to ESA inspectors.

 

 

 

 

 

(4) Duties And Role Of An ESA Prosecutor

 

 

 

124

 

 

 

 

 

(5)

The Defendant Is Entitled To A Fair Trial But Not A Perfect Trial

128

 

 

 

 

(*)

 

(a) The amount of assistance provided by the trial judge to a self-

 

(6) Duty Of A Trial Judge When Dealing With An Unrepresented

132

 

 

Accused

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

represented accused is at the discretion of the trial judge.

 

 

136

640

 

 

 

 

 

 

(b)

How can trial judge deal with misconduct of legal counsel in a

139

 

ONCJ

 

 

trial?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(c)

The application of evidence rules in a trial.

 

 

 

141

2018

 

 

 

 

 

 

 

 

 

 

 

 

 

(i)

The prosecution’s blanket objection to the defendant’s

 

 

 

 

 

 

 

 

 

hearsay testimony and to the defendant’s testimony that

145

 

 

 

 

 

offends the Rule in Browne and Dunn.

 

 

 

 

 

(7)

Was There Prosecutorial Misconduct During The Trial?

 

 

153

 

 

 

 

 

 

 

 

 

 

 

 

(a)

The

prosecutor's actions

or conduct during the

trial

that

the

154

 

 

 

defendant contends would constitute misconduct.

 

 

 

 

 

 

 

 

 

 

 

 

 

(i)

The

prosecutor had

asked leading questions

of

his

own

159

 

 

 

 

 

witnesses in the trial.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(ii)

The prosecutor had elicited hearsay and lay opinion evidence

167

 

 

 

 

 

from prosecution witnesses.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a)

The prosecutor

had elicited hearsay evidence

from

170

 

 

 

 

 

 

prosecution witnesses.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1) Investigative hearsay is permitted to rebut a claim

177

 

 

 

 

 

 

of an inadequate investigation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

b) The prosecutor had elicited lay opinion evidence from the

195

 

 

 

 

 

 

ESA Investigator.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(iii) The prosecutor had elicited or had presented irrelevant bad

211

 

 

 

 

 

character evidence.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(iv)

 

The prosecutor gave evidence.

 

 

 

223

 

 

 

 

 

 

 

 

 

 

(v)

 

The prosecutor got the defendant to comment on the veracity

233

 

 

 

 

 

of prosecution witnesses.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(vi)

The prosecutor had cross-examined or questioned the

 

 

 

 

 

 

defendant about his relationship with his counsel and made

249

 

 

 

 

 

suggestive commentary about the reasons why his legal

 

 

 

 

 

 

 

 

 

 

 

representative may have stopped acting for the defendant.

 

 

 

 

(vii)

 

The prosecutor had attacked and inappropriately commented

 

 

 

 

 

 

on the defendant’s lifestyle and associations with unsavory

261

 

 

 

 

 

persons.

 

 

 

 

 

 

 

(viii)

The prosecutor had inserted editorial commentary into his

 

 

 

 

 

 

cross-examination of the defendant by providing his personal

 

 

 

 

 

 

opinion about the merits of the case against the defendant, on

270

 

 

 

 

 

the merits of the defendant’s defence, and on the credibility or

 

 

 

 

 

 

veracity of the defendant’s testimony.

 

 

 

 

 

 

 

(ix) The prosecutor had used sarcastic and demeaning language

279

 

 

 

 

 

when cross-examining the defendant.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(x) The prosecutor had grilled the defendant on the witnesses he

 

 

 

 

 

 

intended to call and his efforts to contact and get the

286

 

 

 

 

 

witnesses to court and whether the defendant had brought

 

 

 

 

any of the documents that the defendant said he had and

 

 

 

 

which he had promised to bring.

 

 

 

 

 

(xi) The prosecutor had led evidence regarding the defendant’s

 

 

 

 

failure to cooperate with the authorities, in particular the

 

 

 

 

defendant’s refusal to speak

with authorities, and

the

291

 

 

 

prosecutor had also cross-examined the defendant on his

 

 

 

 

 

 

 

failure to assert his innocence when confronted by

 

(*)

 

 

investigators.

 

 

 

 

 

a)

Statutes governing regulated industries sometimes

297

 

 

compel participants to cooperate with inspectors.

 

 

 

 

 

 

(xii) The prosecutor had argued with the defendant directly rather

301

640

 

 

than speaking or making submissions through the court.

 

 

 

 

 

 

 

 

 

ONCJ

 

(xiii)

The

prosecutor had threatened

to request the maximum

307

 

 

 

 

penalty available for the defendant for arbitrary reasons.

 

 

 

 

 

 

 

(8) The Main Category: Did The Prosecutor’s Conduct During The

313

2018

Trial Prevent The Defendant From Having A Fair Trial

 

 

 

 

 

 

(9) The Residual Category: Did The Prosecutor’s Conduct During

 

 

The Trial Cause Prejudice To The Integrity Of The Judicial

319

 

Process?

 

 

 

 

 

(10) Disposition Of The Abuse Of Process Application

 

324

 

 

 

 

(C) DID THE PROSECUTION PROVE BEYOND A REASONABLE DOUBT

 

 

THAT THE DEFENDANT HAS COMMITTED THE 3 REGULATORY

 

 

OFFENCES THAT HE HAS BEEN CHARGED WITH?

 

 

 

(1) Was The Defendant Operating An Electrical Contracting Business

 

 

Without Holding A Valid Electrical Contractor Licence?

 

 

 

(a)

S. 3 of O. Reg. 570/05.

 

 

326

 

 

 

 

 

 

 

(i) The defendant has not been licenced by the ESA as an

 

327

 

 

electrical contractor for the province of Ontario.

 

 

 

 

 

 

(b)

Legislative purpose of the Electricity Act, 1998.

 

330

 

 

 

 

(c) What Type Of Activity Would Entail Electrical Work For Which A

 

 

 

Person Would Need To Be A Licenced Electrical Contractor In

331

 

 

Ontario?

 

 

 

 

 

(d) When does an electrical permit for electrical work for a residential

339

 

 

house have to be obtained?

 

 

 

 

 

 

 

 

(e)

Both the defendant and Steve Duff had not been licensed by the

343

 

 

ESA as an electrical contractor in Ontario.

 

 

 

 

 

 

(f) Is “P & B Construction” a separate legal entity?

 

348

 

 

 

 

 

(g)

What was Paublo Medina’s involvement with the three renovations

350

 

 

in question?

 

 

 

 

 

 

 

 

(h) What was Steve Duff’s involvement with the three renovations in

356

 

 

question?

 

 

 

 

 

 

 

 

 

 

(i) Did Paul Broomfield have a partner in any of the three renovations?

362

 

 

 

 

 

 

 

(i)

Was Paublo Medina a partner in the 22 Vespahills Crescent,

370

 

 

 

Brampton renovation?

 

 

 

 

 

 

 

 

 

 

(ii) Was Ali Nabbouh a partner in the 291 Boon Avenue, Toronto

374

 

 

 

renovation?

 

 

 

 

 

 

 

 

 

 

 

a) Did the prosecution have to disclose the conversation

 

 

 

 

between Ali Nabbouh and

ESA Investigator to

the

377

 

 

 

defendant prior to Ali Nabbouh testifying, even though the

 

 

 

 

 

 

 

defendant was the party calling Ali Nabbouh?

 

 

 

 

(iii) Is there any

credible evidence

that the defendant had a

 

 

 

 

partner in the renovation of 22 Vespahills Crescent, Brampton

385

 

 

 

or of 291 Boon Avenue, Toronto?

 

 

 

 

 

(j)

Is there any evidence that someone licenced as an electrician or

 

 

 

licenced as an electrical contractor in Ontario did any of the

393

 

 

electrical work at any of the three residences in question?

 

 

 

(k)

Has

the

credibility

of any of

the

three

homeowners

been

396

(*)

 

conspiracy against the defendant by the three homeowners?

 

 

 

 

 

undermined?

 

 

 

 

 

 

 

(l)

Has

there

been collusion between the

three

homeowners

or a

404

 

 

 

 

 

 

 

 

 

 

 

 

 

640

(2) Has The Prosecution Proven That The Defendant Has Committed

 

The Actus Reus Of The Three Offences Beyond A Reasonable

 

 

ONCJ

Doubt?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) Is there evidence that the defendant had been engaged in

 

 

 

performing

electrical

work that

is covered

under the Ontario

 

2018

 

Electrical Safety Code for which the defendant is required to hold a

 

 

 

 

 

valid Ontario electrical contractor’s licence?

 

 

 

 

 

(i) Count #1 - 22 Vespahills Crescent, Brampton

 

408

 

 

 

 

 

 

 

 

(ii) Count #2 - 291 Boon Avenue, Toronto

 

 

415

 

 

 

 

 

 

 

(ii) Count #3 - 94 Narrow Valley Crescent, Brampton

 

437

 

 

 

 

(b) Conclusion On Whether The Prosecution Has Proven Beyond A

 

 

 

Reasonable Doubt The Defendant Has Committed The Actus Reus

451

 

 

Of The Offence For The Three Charges.

 

 

 

 

 

(3) Due Diligence Defence

 

 

 

 

 

 

 

 

 

 

 

(a)

Did The Defendant Establish The Defence Of Due Diligence In

 

 

 

Respect To Each Of The Charges On A Balance Of

459

 

 

Probabilities?

 

 

 

 

 

 

 

 

(i)

22 Vespahills Crescent, Brampton

 

 

 

463

 

 

 

 

 

 

 

 

 

 

 

(ii)

291 Boon Avenue, Toronto

 

 

 

 

466

 

 

 

 

 

 

 

 

 

(iii)

94 Narrow Valley Crescent, Brampton

 

 

473

 

 

 

 

(4) Did The Prosecution Prove Beyond A Reasonable Doubt That The

 

 

Defendant Had Been Operating An Electrical Contracting Business

474

 

Without Holding A Valid Electrical Contractor Licence For All Three

 

 

 

Houses?

 

 

 

 

 

 

 

 

7. DISPOSITION

 

 

 

 

 

 

 

477

 

 

 

 

 

 

 

 

 

 

 

 

1.INTRODUCTION

[1]Some trials like trains, run on schedule and stay on the tracks. Occasionally, a trial like a train can fall behind schedule, or even derail, due to unfortunate or serendipitous events. Paul Broomfield, the defendant in this regulatory prosecution under Ontario’s Electricity Act, 1998, claims that this is one of those such occasions, and that his present trial has indeed fallen off the rails, since he claims that he is no longer receiving a fair trial and that the integrity of the judicial process has also been undermined because of the egregious misconduct of the Crown prosecutor during that portion of the trial when the defendant had been self- represented (the defendant had been unrepresented for 9 of the 12 days of scheduled trial dates and had only been represented by legal counsel for the last 3 days of the trial). Ergo, the defendant brings an application for an abuse of process under s. 7 of the Charter based on that prosecutorial misconduct and seeks a remedy under s. 24(1).

[2]The prosecutorial misconduct complained of by the defendant involves the prosecutor purportedly ridiculing the unrepresented defendant; the prosecutor making sarcastic and demeaning comments about the defendant’s memory and the way the defendant was conducting his defence; and in the way the prosecutor had improperly asked leading questions and elicited hearsay and opinion evidence from his own witnesses and by inappropriately presenting irrelevant and bad character evidence. In addition, the defendant contends that the prosecutor had also improperly gave evidence in the trial; that the prosecutor had inappropriately inquired into the defendant’s relationship with his previous legal representative; that the prosecutor had unfairly commented on the defendant’s lifestyle and his associations with unsavory persons; that the prosecutor had inappropriately inserted editorial commentary in the trial about the prosecutor’s personal belief on the defendant’s credibility and on the defendant’s potential defences. As well, the defendant contends that the prosecutor had improperly grilled the defendant about what witnesses the defendant had intended to call and the efforts made by the defendant to do so; that the prosecutor had inappropriately questioned the defendant about his failure to assert his innocence at the outset with the ESA inspector and on the defendant’s failure to speak and cooperate with ESA inspectors and investigators; that the prosecutor had unsuitably argued directly with the defendant instead of speaking or making submissions through the court; and that the prosecutor had inaptly threatened to seek the maximum penalty if the defendant were convicted; and that the prosecutor had improperly asked the defendant to comment on the veracity of prosecution witnesses. As such, the defendant contends that these inappropriate actions by the prosecutor during the trial when the defendant had been unrepresented has irreparably prejudiced the defendant and would cumulatively constitute an abuse of process, which is an infringement of the defendant’s rights under s. 7 of the Charter. Ergo, the defendant submits that the proper remedy under s. 24(1) of the Charter is an order for a stay of proceedings and an order for costs, or at the very least, an order for a new trial, if a stay is not warranted.

2018 ONCJ 640 (*)

[3]In reply to the defendant’s abuse of process claim, the prosecution submits that the defendant’s application is a personal attack on the prosecution, even though the prosecution submits that at various stages of the trial, the prosecution had taken steps to ensure the defendant received a fair trial by offering assistance to the defendant to get the defendant’s witnesses to attend the trial. Moreover, the prosecution contends that the defendant’s allegations used to support his abuse of process claim are offensive, misplaced, and consists of prosecution statements and submissions that had been taken in isolation, out of context, or mischaracterized. Furthermore, the prosecution contends that the defendant’s application does not even come close to meeting the threshold required for granting a remedy, and that the defendant’s application is only a last minute effort by the defendant to avoid the outcome of the trial on its merits by attempting to have the charges against him stayed.

[4]But more importantly, trials for regulatory prosecutions, like criminal trials, are not strictly adversarial -- they are still about fairness and finding the truth. As such, prosecutors, as quasi-ministers of justice, are required to treat accused persons fairly and with dignity. At trial, they are not to insult or make sarcastic comments about accused persons, which could prejudice an accused person, since this improper behavior could affect the fairness of the trial and undermine the integrity of the judicial process. Moreover, judicial officers presiding over trials with unrepresented accused are required to maintain their impartiality and ensure the accused receives a fair trial by explaining and guiding unrepresented accused about trial procedure, rules of evidence, and legal principles, without entering into the arena of the adversarial trial. But, where prosecutorial misconduct causes an unfair trial or undermines the integrity of the judicial process then an accused person can seek a remedy under the Charter based on the doctrine of abuse of process.

[5]In respect to the three charges for this prosecution, the defendant, Paul Broomfield, who had a business doing renovation work for commercial and residential premises, had been hired by three home-owners:

(1)Jay Jairam of 22 Vespahills Crescent in Brampton,

(2)Ahmed Khan of 291 Boon Avenue in Toronto, and

(3)Razeka Bacchus of 94 Narrow Valley Crescent in Brampton,

to do renovation work on their respective homes during a period from August 8, 2011 to July 22, 2014. For the three charges, the prosecution contends that the renovation work included the defendant doing electrical work for which the defendant was neither not legally licensed or authorized to do. In Ontario, the only people or businesses that are legally permitted to do electrical work for the public are licenced electrical contractors. During that period when the defendant was

2018 ONCJ 640 (*)

doing renovation work for the three homeowners, the defendant had not been licenced as a journeyperson electrician by the Ontario College of Trades nor licenced by the Electrical Safety Authority (“ESA”) to operate as an electrical contractor in Ontario. The ESA is an agency that operates as the administrative authority under the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A. and is responsible for public electrical safety in Ontario as designated by s. 1 of the Electrical Safety Authority Regulation (Electricity Act, 1998), O. Reg. 89/99. Furthermore, the ESA has the responsibility for enforcing the Ontario Electrical Safety Code, O. Reg. 164/99, the licensing of electrical contractors and master electricians in Ontario, and for conducting electrical inspections for customers whenever an electrician or electrical contractor is doing electrical work that is covered by the Ontario Electrical Safety Code.

[6]Two of the three homeowners, Jay Jairam of 22 Vespahills Crescent, Brampton and Ahmed Khan of 291 Boon Avenue, Toronto, had contacted the ESA about whether an electrical permit had been taken out for the electrical work that was being done in their respective homes. The defendant had also told both of them that he was an electrician before they had hired him. The ESA then informed both of these two homeowners that no permit had been taken out for their respective houses. The ESA then sent out an ESA inspector to inspect the electrical work that both homeowners had hired and observed the defendant doing in their respective houses. The electrical work that had been done did not pass inspection and the homeowners also learned that the defendant had not been licensed in Ontario to legally do any electrical work.

[7]The ESA then commenced an investigation into the defendant. During the investigation into the defendant and the electrical work that had been done at 22 Vespahills Crescent, ESA Investigator Gary Corbett was made aware of a third homeowner, Razeka Bachhus, who had also hired the defendant to do renovation work on her house at 94 Narrow Valley Crescent, Brampton. After the ESA had inspected the electrical work done in the respective renovations of 22 Vespahills Crescent, Brampton and 291 Boon Avenue, Toronto, the two homeowners, Jay Jairam and Ahmed Khan, were then required to hire a qualified electrician to redo the electrical work that had been supposedly done by the defendant and for someone to rip down the drywall put up by the defendant in order to redo the electrical work. However, the defendant contends that he did not personally do any of the electrical work that had been done in the three homeowners’ houses during the renovation of those three houses. After an investigation had been conducted by the ESA of the three residential houses where renovation work had been done on the three homeowners’ residences by the defendant, the ESA charged the defendant on November 17, 2014, with committing three offences of “operate an electrical contracting business without holding a valid electrical contractor license”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, and did thereby commit an offence under s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A.

2018 ONCJ 640 (*)

[8]Now, for the reasons that follow, the defendant has not proven on a balance of probabilities that the conduct of the prosecutor during the trial had been so improper or abusive that it had prejudiced the defendant from having a fair trial, or that it had been so inappropriate that it had undermined the integrity of the judicial process, so that it violated s. 7 of the Charter for an abuse of process. For many of the evidentiary issues raised by the defendant as part of the abuse of process claim, the defendant’s concern had been about the prejudicial effect of evidence adduced from leading questions by the prosecutor from their own witnesses and the elicitation of irrelevant hearsay, bad character, and lay opinion evidence into the trial, has to be viewed in context and in light of the inferences that are being sought, as well as its intended use in the trial. However, any potentially prejudicial effect of the impugned evidence had been lessened in this trial, as this was a non- jury trial, and the charges involved strict liability regulatory offences in which the prosecution can elicit evidence in their case-in-chief to rebut a defence of due diligence or other anticipated defences. And, although the prosecutor’s intemperate comments, immoderate language, and sarcastic tone were not ideal or professional, they certainly had not crossed the line from aggressive to abusive. Moreover, the trier who heard and perceived the impugned comments, language, and tone, in the context of when the comments would have been made and used, would be able to consider their effects on the defendant, their conceivable prejudice to the fairness of the trial and on the outcome of the trial, as well as its potential prejudice to the integrity of the judicial process. In this case, the prosecutor’s comments, language, and tone during the trial did not cause the defendant to receive an unfair trial, nor did it undermine the integrity of the judicial process, since the defendant’s trial was a non-jury trial for which the trier would be cognizant of applying the relevant legal principles and law and would also be able to disabuse and give no weight to any hearsay, bad character, opinion, or any other irrelevant prejudicial evidence, nor put any weight on any inappropriate, sarcastic, or demeaning comments made by the prosecutor about the defendant’s memory, business practices, or personal lifestyle, or to use the impugned evidence or the prosecutor’s comments improperly as proof of guilt. Hence, this trial, like a train, may have been delayed in arriving on schedule, but it has not been derailed by the conduct of the prosecutor. As a result, the abuse of process application is dismissed.

[9]And, in respect to whether the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus respectively for the three counts, the prosecution has met their burden for two of the three counts. Specifically, the prosecution has proven that the defendant has committed the actus reus for the offence in count #1, which is in respect to Jay Jairam’s house at 22 Vespahills Crescent, Brampton, and the actus reus for the offence in count #2, which is for Ahmed Khan’s house at 291 Boon Avenue, Toronto. However, the prosecution has failed to meet its burden of proving beyond a reasonable doubt that the defendant committed the actus reus for the offence in count #3, which is in respect to Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton. And, in

2018 ONCJ 640 (*)

regards to whether the defendant has met his legal burden of proving a defence of due diligence on a balance of probabilities for the two strict liability offences in counts #1 and #2, the defendant has not established that he had taken all reasonable care in the circumstances to avoid committing those two offences or that he had been under a mistaken set of facts, if true, would make his acts or omissions innocent. Accordingly, convictions will be entered against the defendant for counts #1 and #2; while an acquittal will be entered for count #3.

[10]In addition, the trial of these three charges had commenced on January 25, 2017, and concluded on May 2, 2018. Although the defendant had been given an opportunity to adjourn the first day of trial in order to retain counsel, the defendant decided to go ahead with his trial and represent himself. Over the first 9 days of the 12 days that were set aside or actually held for the trial, the defendant had represented himself. It was only for the last 3 days of the trial that the defendant had been represented by legal counsel.

[11]The trial had taken a total 12 days of scheduled trial dates to complete and were held on January 25 and 26 of 2017; February 1 and 2 of 2017; June 28 and 29, 2017; September 7, 2017; October 24, 2017, November 1, 2017, November 23, 2017, March 8, 2018, and May 2, 2018. During the trial, 11 witnesses testified: eight for the Crown and three for the defence. The prosecution witnesses were:

(1) Jay JAIRAM, owner of 22 Vespahills Crescent in Brampton; (2) Shaun SMITH, inspector for the ESA, who inspected 22 Vespahills Crescent in Brampton; (3) Ahmed KHAN, owner of 291 Boon Avenue, Toronto; (4) Tim BERRY, inspector for the ESA, who inspected 291 Boon Avenue, Toronto; (5) Sean LICHTY, underwriter at Gore Mutual Insurance Company; (6) Razeka BACCHUS, owner of 94 Narrow Valley Crescent in Brampton; (7) Scott EASON, project specialist with the Electrical Contractors Registration Agency of the ESA; and (8) Gary CORBETT, investigator for the ESA. The defence witnesses were: (1) Errol FARQUHARSON; previous owner of 291 Boon Ave, Toronto (2) Ali NABBOUH, an individual who had supposedly been the defendant’s partner in the renovation of 291 Boon Avenue, Toronto; and (3) the defendant.

[12]After witness testimony was completed on March 8, 2018, the defendant subsequently brought an application on May 2, 2018, for a remedy under s. 24(1) of the Charter for an infringement of the defendant’s rights under s.7 of the Charter for an abuse of process. As well, final submissions on the merits of the three Electricity Act, 1998 charges laid against the defendant were also completed on May 2nd by both the prosecution and the defendant. Judgment was then reserved on the abuse of process application, as well as judgment was reserved on whether the prosecution had proven that the defendant is guilty of committing the three charges beyond a reasonable doubt, and the matter was then adjourned to September 19, 2018, for the ruling on the application and on the judgment to be rendered on the three charges. These, therefore, are the written reasons for both the abuse of process ruling and the judgment on the three charges:

2018 ONCJ 640 (*)

2.THE CHARGES

[13]The defendant, Paul Broomfield, under a Part III Information numbered 8477 that was sworn on November 17, 2014, has been charged with committing the following three offences under s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, and did thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A:

Count #1

Paul William Broomfield of [municipal address removed for privacy]

Mississauga, Ontario,

between the 1st day of April 2014 and the 22nd day of July 2014 at 22 Vespahills Crescent, Brampton, Ontario, did commit the offence of

did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05, and did thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, R.S.O. 1998, Chapter 15, Schedule A, as amended.

Count #2

Paul William Broomfield of [municipal address removed for privacy]

Mississauga, Ontario,

between the 2nd day of December 2013 and the 30th day of April 2014 at 291 Boon Avenue, Toronto, Ontario, did commit the offence of

did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05, and did thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, R.S.O. 1998, Chapter 15, Schedule A, as amended.

Count #3

Paul William Broomfield of [municipal address removed for privacy]

Mississauga, Ontario,

between the 2nd day of January 2012 [8th day of August 2011 (after prosecution application to amend the start date for this charge granted] and the 31st day of December 2012 at 94 Narrow Valley Crescent, Brampton, Ontario, did commit the offence of

did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05, and did

2018 ONCJ 640 (*)

thereby commit an offence contrary to s. 113.20(1)(d) of the Electricity Act, R.S.O. 1998, Chapter 15, Schedule A, as amended.

3.BACKGROUND

(A)SUMMARY OF THE FACTS

[14]During a period from August 8, 2011 to July 22, 2014, three homeowners had contracted with the defendant, Paul Broomfield, to renovate parts of their respective homes. The three homeowners who had contracted with the defendant were: (1) Jay Jairam of 22 Vespahills Crescent in Brampton, (2) Ahmed Khan of 291 Boon Avenue in Toronto, and (3) Razeka Bacchus of 94 Narrow Valley Crescent in Brampton. As testified to by two of the three homeowners (Jay Jairam and Ahmed Khan), their respective renovation agreements included the defendant doing all of the renovation work, including doing the electrical work. For the other homeowner (Razeka Bacchus), she did not specifically refer to an agreement to do the electrical work, but did testify to the defendant being responsible for installing 16 pot lights with the accompanying switches or dimmers as part of their agreement. But more importantly, during the period in which renovation work was being done on the three homes, the defendant had not been licenced as an electrical contractor by the Electrical Safety Authority (the “ESA”), the body which governs the licensing of electrical contractors in Ontario.

(1)22 Vespahills Crescent, Brampton

[15]Jay Jairam had testified that before he had hired the defendant to renovate the basement of his relatively new house, the defendant had told Jairam that the defendant was an electrician. The defendant had commenced the renovation work on Jay Jairam’s house at 22 Vespahills Crescent, Brampton sometime about April 1, 2014, and had stopped or abandoned doing any further work at 22 Vespahills Crescent on July 22, 2014, after ESA inspector Shaun Smith had inspected the electrical work done in the basement of the house at 22 Vespahills Crescent and had ordered the defendant, Paul Broomfield, to stop doing anymore electrical work at that particular house.

[16]Jairam also said that before the defendant began to renovate the basement of Jairam’s house at 22 Vespahills Crescent, no electrical work had been done to the basement and that Jairam had never hired any electrical contractor to do any electrical work in the basement of his house before he had actually hired the defendant to renovate his basement. In addition, Jairam testified that he had observed the defendant on weekends doing electrical work in the basement of his house at 22 Vespahills Crescent, during the time the defendant had been doing the basement renovation.

2018 ONCJ 640 (*)

[17]Furthermore, Jairam said that because of conversations with other electricians that Jairam knew, Jairam had become concerned about whether an electrical permit had been taken out for the electrical work being done at his house at 22 Vespahills Crescent. Jairam also said he had asked the defendant about the electrical permit and the defendant had told Jairam not to worry and that Jairam would get the inspection certificate at the end.

[18]Because of Jairam’s concern about the electrical work being done on his house, Jairam called the ESA on July 18, 2014, to enquire about whether an electrical permit had been taken out for his house at 22 Vespahills Crescent, Brampton. Jairam said that he had been informed by the ESA that no permit for electrical work had been taken out for his house. The ESA then sent out ESA Inspector Shaun Smith to inspect Jairam’s house. When ESA Inspector Smith arrived at 22 Vespahills Crescent on July 21, 2014, ESA Inspector Smith testified that he had entered the basement of the house and had observed the defendant doing work in the basement with another male person, but does not recall seeing the defendant doing any electrical work. ESA Inspector Smith also said that he had asked the defendant for the defendant’s name and for the name of the person who had done the electrical work in the basement of 22 Vespahills Crescent, but the defendant did not provide his full name or the name of the person who had done the electrical work in the basement. ESA Inspector Smith also said he had observed a defect in the electrical work that did not comply with Ontario’s Electrical Safety Code, and which had not been covered up by drywall. In addition, ESA Inspector Smith said that much of the electrical work done in the basement had been covered up by drywall. After the inspection, ESA inspector Smith informed Gary Corbett, the ESA investigator, on July 21, 2014, about the electrical work being done at 22 Vespahills Crescent by someone who may not have been a licenced electrical contractor. In addition, ESA Inspector Smith said that licenced electrical contractors would not have covered up the electrical work with drywall until after the electrical work had passed inspection by the ESA.

[19]In addition, Jay Jairam had testified that the electrical work that had been done in his basement during the renovation work had not been done properly and had to be redone by a qualified electrician for an additional cost to Jairam. Jairam also said that the drywall that had been put up and covering the wiring as part of the renovation work had to be removed in order that the wiring and electrical work could be redone properly.

[20]Furthermore, Jairam testified that he had paid about $6,000 to $7,000 in cash to the defendant do the electrical work, and that it cost him and his wife an additional $10,000 to start over again and redo the renovation and to also correct the electrical work done by the defendant.

[21]In regards to the electrical work that had been done in the basement of 22 Vespahills Crescent, Brampton, ESA Inspector Shaun Smith, testified that he had attended in the basement of that house in July of 2014, which ESA Inspector

2018 ONCJ 640 (*)

Smith later acknowledged had been on July 21, 2014. ESA Inspector Smith also said that on that day he had observed the defendant working in the basement with another male person. In addition, ESA Inspector Smith said he had asked the defendant if he had done the electrical work and the defendant had replied, “No”. ESA Inspector Smith then asked the defendant who had done the electrical work, and Smith said that the defendant had replied that he could not remember, but that his electrician did it. ESA Inspector Smith also said that the electrical work that had been done had been covered up, but that Smith did observe some defects that were not Code compliant that had not been covered up by the drywall. Moreover, ESA Inspector Smith described one of the defects as an “open joint”, which meant that there had been a joint or a splice in a wire before the wire had reached an electrical outlet, which was not permitted under the Electrical Safety Code, which requires one continuous wire instead of two wires spliced together before the wire reaches the electrical outlet.

[22]ESA Inspector Smith also said he had taken a photograph of the licence plate of the motor vehicle that the defendant was driving that day and which had been parked outside of 22 Vespahills Crescent, Brampton, and then forwarded that photograph of the licence plate to ESA Inspector Gary Corbett.

[23]Moreover, ESA Inspector Smith said that any licenced electrical contractor or electrician would have taken out a permit for any electrical work being done. Smith then said that there had been no permits in the ESA system for 22 Vespahills Crescent, Brampton.

[24]Furthermore, ESA Inspector Smith said that a permit had been subsequently taken out by a licenced electrical contractor on August 13, 2014, for 22 Vespahills Crescent. Eventually, ESA Inspector Smith said the electrical work done by the licenced electrical contractor passed inspection and Smith said he sent a “Certificate of Inspection” to the licenced electrical contractor.

(2)291 Boon Avenue, Toronto

[25]For Ahmed Khan’s house at 291 Boon Avenue, Toronto, Ahmed Khan testified that the defendant had provided Ahmed Khan with a business card with the name of Paul Broomfield under a business name of P & B Construction. The business or style name of P & B Construction had been registered with the Ministry of Government and Consumer Services as a general partnership (see Exhibit 5). Also, the back of the business card indicates that Paul Broomfield or P & B

Construction did “Renovations Commercial/Residential, Tiles and Drywall and Electrical”.

[26]Furthermore, Ahmed Khan had said that he had hired the defendant to do the renovation of his house at 291 Boon Ave. Ahmed Khan and the defendant had entered into a written agreement on March 24, 2013 for the renovation work to be done on the house (see Exhibit 12). However, this written agreement does not

2018 ONCJ 640 (*)

specifically mention doing any electrical work, except for removing the electrical as part of the demolition work. On the other hand, Khan testified that the defendant was supposed to do all the electrical work and run new wiring and put new fixtures in for the pot lights.

[27]Ahmed Khan also testified that the defendant had told Khan that he was an electrician, but had a renovation construction business. In addition, Khan said the defendant had commenced the renovation work at the 291 Boon Avenue house about March 26, 2013, as required by the agreement, and then had stopped or abandoned the renovation job before it had been completed sometime near the end of December of 2013.

[28]Khan further said that he had observed the defendant doing electrical work in the basement of 291 Boon Avenue in the nature of pulling wire from the main electrical panel in the basement through the joists in the basement and also putting electrical outlets on the studs before the drywall was put up. Moreover, Khan said he recalls being with the defendant for about an hour when the defendant had been pulling wire in the basement while the defendant had been standing in water that was on the basement floor, which made Khan concerned for his and the defendant’s safety while the defendant had been working with electrical wires while standing in a pool of water. Khan also said he had raised the safety concern with the defendant at that time.

[29]In addition, Khan said the defendant had asked for permission to bring someone in to help the defendant do the electrical work, since the defendant had been falling behind schedule. Khan said he gave his approval and the defendant then brought in a person named Steve Duff to help the defendant do the electrical work. Moreover, Khan said he had observed the defendant and Steve Duff doing electrical work together for about one week and a half in December of 2013, until the defendant had stopped coming to 291 Boon Avenue and Khan had lost contact and communication with the defendant. Khan then said he had to hire Steve Duff’s company, Wiztronic Inc., separately to fix the improper electrical work done in the basement by the defendant and to finish the electrical work for the whole house. Wiztronic Inc. (referring to itself as an “Electrical and Communication Contractor”) then provided Ahmed Khan with an invoice dated January 16, 2014, for a total amount of $1695 for that separate electrical work (see Exhibit 11). Khan also said that he had to himself pay for the parts for the electrical work being done Wiztronic Inc.

[30]Khan also said that the renovation work agreed to be done for the house at 291 Boon Avenue, Toronto, by the defendant had not been completed by the defendant.

[31]In addition, Khan said that he had received advice from Paublo Medina, the person who did the drawings for his house at 291 Boon Avenue, to enquire if a permit had been taken out for the electrical work for his house. Khan then said he contacted

2018 ONCJ 640 (*)

the ESA (on September 26, 2014) and learned that that no permit to do the electrical work at 291 Boon Avenue, Toronto, had been taken out by the defendant. After an ESA inspector attended 291 Boon Avenue on September 30, 2014, and inspected the electrical work done at 291 Boon Avenue, Khan said the electrical work did not pass inspection and that Khan had to have the drywall taken down and all the electrical work removed and redone by a licenced electrical contractor. Khan also said that he had been informed by the ESA that neither the defendant nor Steve Duff were licenced electricians or licenced electrical contractors in Ontario.

[32]Furthermore, Khan testified that it had cost him about $7000 to fix and redo the renovation and to hire a licenced electrical contractor to correct the electrical work done by both the defendant and Steve Duff.

(3)94 Narrow Valley Crescent, Brampton

[33]As for the house at 94 Narrow Valley Crescent, Brampton, the homeowner, Razeka Bacchus, testified that she had hired the defendant to repair and renovate parts of the main floor of her house that had been damaged and vandalized during a break-in at her house. Bacchus said that her insurance company had given her a cheque for $25,000 to be used for repairing the damage to the inside of her house and that she could hire her own contractor to do the work. Bacchus then hired the defendant on August 8, 2011, to repair and renovate her house for an agreed price of $20,000. The defendant then commenced working on Bacchus’s house, but Bacchus testified that she was not present when the defendant was working in her house. Bacchus also said that the defendant had stopped doing any work on her house at about the end of December of 2012. She also said that the agreed upon work that the defendant was supposed to do for Bacchus was not completed by the defendant.

[34]But more importantly, Bacchus did not testify that Bacchus and the defendant had specifically agreed that the defendant would do any electrical work in the repair and renovation of Bacchus’s house, but Bacchus did say that the renovation work had included installing 16 pot lights and accompanying light switches. In addition, Bacchus said that it had been Bacchus’s understanding that the defendant would bring in qualified people to do any work that the defendant could not do himself.

[35]However, Bacchus did not testify to specifically observing the defendant doing any electrical work to her home and had only observed a young man about 22 or 23 years old that had been working with the defendant drilling holes for the pot lights.

[36]Bacchus also testified that when she uses her dishwasher or microwave when her pot lights are also turned on, the power would go off and she would have to reset her power.

2018 ONCJ 640 (*)

[37]In addition, Bacchus said that she had to pay another contractor to redo the bathroom floor, but she did not testify about hiring anyone to correct the electrical work that had been done during the renovation of her house by the defendant.

[38]Furthermore, Bacchus said that she is acquainted with Jay Jairam (the homeowner of 22 Vespahills Crescent, Brampton) because her place of employment is only a few doors away from Jairam’s autobody shop. In addition,

Bacchus had acknowledged that she had discussed with Jairam that the renovation work for her house had not been completed by the defendant, which had been similar to what had happened with Jairam’s renovation.

(4)The ESA charges the defendant with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence” on November 17, 2014.

[39]After ESA Investigator Gary Corbett had interviewed witnesses and completed his investigation into the electrical work done in the three houses, Corbett charged the defendant, Paul Broomfield, on November 17, 2014, with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence” in relation to those three houses. Corbett then personally served the defendant with a summons to appear in court on January 6, 2015, for those three charges.

[40]The ESA had begun an investigation into the defendant shortly after ESA Inspector Shaun Smith inspected Jay Jairam’s house at 22 Vespahills Crescent, Brampton, on July 21, 2014. During ESA Investigator Gary Corbett’s investigation of 22 Vespahills Crescent, Corbett said he had received information that the defendant may have also done electrical work at Razeka Bacchus’s house at 94

Narrow Valley Crescent, Brampton. Therefore, the ESA would have only first learned about the defendant’s renovation work at 94 Narrow Valley Crescent as early as July 21, 2014, which is within the two-year limitation period for commencing charges against the defendant when the information was sworn on November 17, 2014, in respect to the defendant’s alleged electrical work done at

94 Narrow Valley Crescent, sometime between August 11, 2011 to December 31, 2012. The two-year limitation period for laying this specific charge set out in count #3 against the defendant only starts at the time when the facts that gave rise to the alleged offence first come to the attention of the Director of the ESA. In this case the earliest date that the Director could have been aware of the facts that gave rise to the alleged offence in relation to Razeka Bacchus’s house at 94 Narrow Valley

Crescent, Brampton, would have been on July 21, 2014.

[41]Moreover, it had been only on September 26, 2014, that Ahmed Khan had enquired about whether an electrical permit for the electrical work that had been done at 291 Boon Avenue, Toronto, had been taken out by the defendant, for which Khan had been informed by the ESA that no permit had been taken out by the defendant. In addition, Khan had also learned shortly after that inquiry to the

2018 ONCJ 640 (*)

ESA that neither the defendant nor Steve Duff had been licensed in Ontario to do electrical work as an electrical contractor.

[42]In addition, ESA Investigator Gary Corbett said that he had charged both Steve Duff and Steve Duff’s company, Wiztronic Inc., for “operating an electrical contracting business without holding a valid electrical contractor licence” in respect to the electrical work Steve Duff had done at 291 Boon Avenue, Toronto. For those particular charges, Corbett testified that the company Wiztronic Inc. had pled guilty to the charge and that the charge against Steve Duff had been withdrawn by the prosecution.

(B)HISTORY OF THE PROCEEDINGS

[43]The information charging the defendant, Paul Broomfield, with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, thereby allegedly committing an offence under s. 113.20(1)(d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A, had been sworn and laid on November 17, 2014. A summons was then issued and served on the defendant, ordering the defendant to appear in court on January 6, 2015, to answer to the three charges.

[44]On January 6, 2015, the defendant appeared as required and was provided with initial disclosure. The matter was then adjourned to March 3, 2015, to be spoken to. On March 3rd, the defendant appeared and was provided with further disclosure. The defendant then informed the court that he had approached

someone named “B. Bernardo” to be his legal representative. The matter was then adjourned to April 7, 2015. The defendant on the March 3rd appearance was also informed by the court that on the April 7th appearance date the defendant had to bring a letter from his legal representative indicating that they had been retained.

[45]On April 7, 2015, the defendant appeared with Michael Mahadeo, a legal representative, who was not yet retained by the defendant. The matter was then adjourned to May 5, 2015, to be spoken to, for retainer purposes. On May 5, 2015, Michael Mahadeo appeared for the defendant and informed the court that the defendant had still not yet retained Mahadeo. The matter was then again adjourned to June 2, 2015, for retainer purposes.

[46]On June 2, 2015, Michael Mahadeo appeared again for the defendant and informed the court that he was still not retained by the defendant. The matter was once again adjourned for retainer purposes to July 7, 2015. On July 7, 2015, Michael Mahadeo appeared for the defendant and once more informed the court that he was still not retained. The matter was then adjourned to August 4, 2015. On August 4th, both the defendant and Michael Mahadeo appeared. The matter

2018 ONCJ 640 (*)

was then adjourned to September 1, 2015, for ongoing and continuing resolution discussions. On September 1st, Michael Mahadeo again appeared for the defendant. The matter was then adjourned to November 3, 2015, for either setting a JPT, setting a trial date, or for resolving. On November 3, 2015, both the defendant and Michael Mahadeo appeared. The matter was then set for a JPT to be held on January 12, 2016, over one year after the defendant’s first appearance. On January 12, 2016, both the defendant and Michael Mahadeo appeared for the JPT. The matter was then adjourned to March 8, 2016, to set a four-day trial. On March 8, 2016, Michael Mahadeo appeared once again for the defendant and the matter was set down for trial with four dates selected as September 14, 15, 21, 22, 2016. A confirmation date was also set for August 9, 2016. On August 9th, legal representative, A. Dhir, appeared for Michael Mahadeo and four new trial dates were set for the four-day trial consisting of January 25 and 26 and February 1 and 2, 2017. A second JPT was also set for November 22, 2016.

[47]On the November 22nd second JPT date, the four trial dates commencing on January 25, 2017, were confirmed by the defendant’s legal representative Michael Mahadeo.

[48]On the first trial date of January 25, 2017, the defendant appeared and informed the court that Michael Mahadeo would not be representing him as the defendant could not afford the retainer. The defendant was then asked if he was ready to proceed with the trial and the defendant said that he was. Moreover, the defendant on the first day of the trial did not request an adjournment in order to hire a legal representative. The trial then finally began with the defendant representing himself, some 26 months and one week after the information had been sworn on November 17, 2014. The defendant was then arraigned on the three charges, to which the defendant had entered not guilty pleas.

[49]On the first day of the trial of January 25, 2017, 4 prosecution witnesses, Jay Jairam, Shaun Smith, Ahmad Khan, and Timothy Berry, testified.

[50]On the second day of the trial held on January 26, 2017, 4 prosecution witnesses, Sean Lichty, Razeka Bacchus, Scott Eason, and Gary Corbett testified. During the testimony of Sean Lichty of Gore Mutual Insurance, the defendant had informed the court that he wanted to testify on the liability insurance number issue and had been permitted to testify out of order on only that specific issue, for reason of expediency and trial management to accommodate the prosecution not having to recall Sean Lichty to testify on another day for the purposes of rebuttal in respect to any issue raised by the defendant’s testimony in respect to the liability insurance number issue. After the defendant had testified and been cross-examined by the prosecution on only that specific issue, the prosecution did not recall Sean Lichty to provide rebuttal evidence.

[51]On the third actual day of the trial of February 1, 2017, after ESA Investigator Gary Corbett had completed his testimony, the prosecution closed its case. The

2018 ONCJ 640 (*)

defendant then began his defence and called as his first witness, Gary Corbett, the ESA investigator. Also, on February 1st, Errol Farquharson and the defendant himself testified for the defence. The defendant began his testimony that day but did not complete his testimony on February 1st. The third trial day was then adjourned to February 2, 2017, for the cross-examination of the defendant by the prosecution.

[52]On the 4th day of the trial of February 2, 2017, the prosecution’s cross- examination of the defendant did not begin immediately as the defendant sought an adjournment. After submissions were heard from both parties in respect to the defendant’s application for an adjournment, the adjournment was not granted. The defendant in his application stated that he had been trying to contact a person named Ali Nabbouh to be a witness for the defence, but had been unsuccessful. Later, on February 2nd, Ali Nabbouh, a person that the defendant had mentioned in his testimony was present in the courtroom. Nabbouh had been contacted by Gary Corbett, the ESA investigator, on the morning of February 2nd and Nabbouh had agreed to attend later that day to testify. Ali Nabbouh arrived later on February 2nd and was allowed to testify as a defence witness about whether he had been a partner or intending to go into a partnership with the defendant on the 291 Boon Avenue, Toronto house renovation and whether Nabbouh had actually provided to the defendant the WSIB number and the liability insurance policy number written on a piece of paper entered as Exhibit 7. After Nabbouh’s testimony was completed, the prosecution began its cross-examination of the defendant. However, the prosecution’s cross-examination could not be completed on February 2nd. The trial was then adjourned to June 28, 2017, at 9:00 a.m., for the continuation of the prosecution’s cross-examination of the defendant

[53]On the scheduled 5th day of the trial of June 28, 2017, the defendant did not appear at 9:00 a.m. ESA Investigator Gary Corbett informed the court that Corbett had left a voice mail on the defendant’s telephone number to remind the defendant of the trial continuation that was to be held on June 28th. The court waited for the defendant to appear that morning of June 28th, but since the defendant did not appear a bench summons was then issued to the defendant at 11:31 a.m., ordering the defendant to appear on June 29, 2017, at 9:00 a.m. for the continuation of the defendant’s trial. Gary Corbett, the ESA Investigator, agreed to serve the summons on the defendant. Later that day on June 28th, after counsel for the prosecution had already left the courthouse, the defendant arrived late at the courthouse having received Corbett’s voice message. The defendant was then informed by the court on what had occurred that morning and that the defendant had to appear the next day on June 29th for the continuation of his trial.

[54]On the 6th scheduled day of the trial of June 29, 2017, before the defendant’s trial resumed, the defendant brought an application to adjourn his trial so that he could hire legal counsel. The defendant's application for an adjournment was granted. Two additional trial days were then scheduled for November 1 and 2, 2017, with a confirmation date of readiness scheduled for September 7, 2017. The defendant

2018 ONCJ 640 (*)

was also informed that he would have to order transcripts of the witness testimony already given in the trial for the legal counsel that the defendant was intending to retain.

[55]On the September 7, 2017, confirmation date (the 7th date), the defendant did not appear at the scheduled time of 9:00 a.m. Counsel for the ESA then informed the court that they had not been contacted by counsel for the defendant or by the defendant in respect to the continuation of the trial. The November 1 and 2, 2017, trial dates were then confirmed and counsel for the ESA were excused. After counsel for the prosecution left the courthouse, the defendant then arrived late at 9:37 a.m. without counsel. The defendant then informed the court that he had retained the Mahadeo law firm, which was the same “Michael Mahadeo” that had been appearing and representing the defendant before the defendant’s trial had commenced. The defendant was then instructed that the defendant’s trial would commence again on November 1, 2017, and that the November 1 and 2, 2017, trial dates were confirmed.

[56]The defendant then brought an application on October 24, 2017 (the 8th date), to adjourn the November 1 and 2, 2017, trial dates, citing that the transcripts in respect to the previous trial dates were not ready. However, the defendant had only ordered the transcripts on September 29, 2017, which was nearly 3 months after the defendant’s last appearance on June 29, 2017, when the defendant’s application to adjourn his trial to hire legal counsel had been granted. The defendant also informed the court that he had retained Michael Mahadeo, but did not have a letter from Mahadeo that Mahadeo had been retained and reasons why Mahadeo would not be available on November 1 and 2, 2017, for the recommencement of the defendant’s trial. Michael Mahadeo was then contacted by the court by speaker phone in the courtroom and was informed by Mahadeo that he had not been retained by the defendant and that he would not be able to represent the defendant without transcripts. After further arguments were made on the defendant’s adjournment application, the defendant’s application was not granted and that the defendant was informed that defendant’s trial would commence again on November 1 and 2, 2017.

[57]On November 1, 2017 (the 9th date), the defendant appeared by himself and brought another application to adjourn his trial and provided a letter from legal counsel, David North, which indicated that David North has been retained by the defendant, but was not available on November 1 and 2, 2017, because of counsel’s previous commitments. After arguments were heard on this particular adjournment application, the defendant’s application to adjourn the trial was granted and the November 1 and 2, 2017, trial dates were vacated. The matter was then adjourned to November 23, 2017, to set new dates to continue with the trial.

[58]On November 23, 2017 (the 10th date), legal counsel, David North appeared with the defendant and the dates of March 8, 2018 and April 25, 2018, were agreed

2018 ONCJ 640 (*)

upon for the continuation of the trial. Counsel for the defendant also expressly waived s. 11(b) from November 23, 2017 to the next trial dates. In addition, counsel for the defendant then subsequently asked the trial coordinator to change the April 25, 2018 trial date because of a conflict and that date was then changed by the trial coordinator to May 2, 2018.

[59]On March, 8, 2018 (the 11th date), the defendant’s trial proceeded with the continuation of the cross-examination of the defendant by the prosecution. The last day that testimony had been given in the defendant’s trial had been on

February 2, 2017, which had been 13 months earlier. The cross-examination of the defendant by the prosecution was then completed on March 8, 2018. The trial was then adjourned until May 2, 2018, for potential re-examination of the defendant and final submissions.

[60]However, on April 5, 2018, the defendant served the prosecution and the court, with notice of the abuse of process application that would be brought on May 2, 2018.

[61]The abuse of process application was then argued on May 2, 2018 (the 12th date). After arguments on the abuse of process application were heard, ruling on the application was reserved. Final submissions were then heard on whether the prosecution had proven that the defendant had committed the three charges beyond a reasonable doubt. Judgment on the three charges was also reserved. The matter was then adjourned to September 19, 2018, for the ruling on the abuse of process application and judgment, if necessary, on the three charges.

4.APPLICABLE LAW

[62]The defendant has been charged with committing three strict liability regulatory offences of operating an electrical contracting business in respect to three separate residences without having a valid electrical contractor license, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, which would be an offence under s. 113.20(1)(d) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A. Section 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation prohibits a person from operating an electrical contracting business in Ontario without having an electrical contractor license that has been issued by the

Electrical Safety Authority of Ontario (“ESA”):

Licence required, electrical contractor

3.No person shall operate an electrical contracting business without an electrical contractor licence issued under this Regulation.

2018 ONCJ 640 (*)

[63]In respect to the s. 113.20(1)(d) offence under the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, that provision states that a person is guilty of committing an offence if the person contravenes or fails to comply with subsection 113.2(1) of the Electricity Act, 1998. The penalty which could be imposed on the defendant if convicted of committing an offence under s. 113.20(1)(d) of the Electricity Act, 1998 is a maximum fine of $50,000 or to a period of imprisonment of not more than one year or to both a fine and a period of imprisonment [emphasis is mine below]:

Offences

113.20(1) Every person,

(d)that contravenes or fails to comply with subsection 113.2(1) is guilty of an offence and on conviction is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both, and a further fine of not more than $5,000 for each day upon which the offence is repeated or continued;

[64]Subsection 113.2(1) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, states that no person shall carry out or propose to carry out, or permit or employ another person to carry out, except as provided in the regulations, an activity referred to in the regulations (such as operating an electrical contracting business in Ontario), which legally requires an authorization without having first obtained an authorization for that activity in accordance with that particular Part of the Electricity Act, 1998 and the regulations [emphasis is mine below]:

Authorization

113.2(1) Except as provided in the regulations, no person shall carry out or propose to carry out, or permit or employ another person to carry out, an activity referred to in the regulations as requiring an authorization without first obtaining an authorization in accordance with this Part and the regulations.

[65]More importantly, according to s. 113.20(7) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, a proceeding to prosecute someone for committing an offence under s. 113.20(1)(d), has to be commenced before two years following the date on which the facts that gave rise to the alleged offence first came to the attention of the Director [emphasis is mine below]:

113.20(7) No proceeding in respect of an alleged offence under this Part may be commenced after two years following the date on which the facts

2018 ONCJ 640 (*)

that gave rise to the alleged offence first came to the attention of the Director.

[66]However, s. 2 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, does provide for an exception to the requirement to obtain an electrical contractor license for operating an electrical contracting business in Ontario for doing electrical work and sets out the situations in which an electrical contractor licence is not legally required:

Non-application of regulation

2.This Regulation does not apply to a person engaged in the following types of electrical work:

1.Work done on original equipment of a manufacturer if done by an employee or agent of the original equipment manufacturer who has been trained by the manufacturer to perform maintenance, service or repair on the equipment and if the work being done does not include extending or altering the equipment or installing, extending, altering or repairing any electrical wiring connected to that equipment.

2.Work done on equipment or electrical installations within an industrial establishment or on a farm if done by an owner, an operator or an employee of the owner or operator.

3.Work done on electrical equipment or installations within a residential dwelling if done by an owner or occupant of the dwelling.

4.Work done within the scope of practice for the trade of refrigeration and air conditioning systems mechanic or residential air conditioning systems mechanic by a person authorized under the Ontario College of Trades and Apprenticeship Act, 2009 to practise the applicable trade.

5.Work done within the scope of practice for the trade of sprinkler and fire protection installer by a person authorized under the Ontario College of Trades and Apprenticeship Act, 2009 to practise that trade.

6.Work done on elevators and escalators by a person authorized to do such work under Ontario Regulation 209/01 (Elevating Devices) made under the Technical Standards and Safety Act, 2000.

7.Work done on electrical components of appliances by a person authorized to do such work under Ontario Regulation 210/01 (Oil and Gas Pipeline Systems), Ontario Regulation 211/01 (Propane Storage and Handling) and Ontario Regulation 215/01 (Fuel Industry Certificates) made under the Technical Standards and Safety Act, 2000.

8.Work done on electrical equipment that plugs into an electrical source if the work being done constitutes maintenance, service or repair of the

2018 ONCJ 640 (*)

equipment that does not include extending or altering the equipment or installing, extending, altering or repairing any electrical wiring connected to that equipment.

9.Work done that falls within the scope of Ontario Regulation 22/04 (Electrical Distribution Safety) made under the Electricity Act, 1998.

10.Work done on any electrical equipment or electrical installation that is specifically excluded by Rule 2-000 of the Electrical Safety Code.

[67]The exclusion mentioned in s. 2(10) of the Licensing Of Electrical Contractors And Master Electricians Regulation refers to work done on any electrical equipment or electrical installation that is specifically excluded by Rule 2-000 of the Ontario Electrical Safety Code (Electricity Act, 1998), O. Reg. 164/99. Rule 2-000 refers to the Ontario Electrical Safety Code not applying to the following, which includes for example: electrical equipment and electrical installations used exclusively in the generation, transmission, or distribution of electrical power or energy intended for sale or distribution to the public; electrical equipment and electrical installations in communication systems; electrical equipment and electrical installations used in the operation of an electric railway or electric street railway; electrical equipment and electrical installations in railway locomotives; electrical equipment and electrical installations in an aircraft; and electrical equipment and electrical installations in a mine:

Section 2 — General Rules

Administrative

2-000 Scope (see Appendix B)

This Code does not apply to

(a)electrical equipment and electrical installations used exclusively in the generation, transmission, or distribution of electrical power or energy intended for sale or distribution to the public as specified in Item (i), (ii), or (iii), except where the Ontario Energy Board require an authorization to connect from the inspection department in accordance with Part V of the Ontario Energy Board Act, 1998:

(i)the distributor is licensed to own or operate the distribution system under Part V of the Ontario Energy Board Act, 1998;

(ii)the transmitter is licensed to own or operate the transmission system under Part V of the Ontario Energy Board Act, 1998; or

(iii)the generator is licensed to own or operate the generation system or is licensed to provide ancillary services for sale through the IESO- administered markets or directly to another person, under Part V of the

2018 ONCJ 640 (*)

Ontario Energy Board Act, 1998;

(b)electrical equipment and electrical installations in communication systems from the transformer or other current limit in device used at the junction of the communication system with the electric circuit supplying the communication system;

(c)electrical equipment and electrical installations in the cars, car-houses, passenger stations, or freight stations used in the operation of an electric railway or electric street railway and supplied with electric current from the railway power-circuit;

(d)electrical equipment and electrical installations in railway locomotives, railway cars, signalling systems, communication systems, wayside train monitoring systems, and track facilities including the branch circuit supplying such electrical equipment or electrical installations when such electrical equipment or electrical installation is used in the operation of a railway;

(e)electrical equipment and electrical installations in an aircraft;

(f)electrical equipment and electrical installations in a mine as defined in the Mining Act, excluding any dwelling house or other building not connected with, or required for, mining operations or purposes or used for the treatment of ore or mineral;

(g)electrical equipment and electrical installations on a vessel of non-Canadian registry or on a vessel that is required to be certified in accordance with the Canada Shipping Act except for such equipment and installations required to connect the electrical supply from the onshore electrical supply facility to the service box on the boat and including the service box; or

(h)electrical equipment forming an integral part of a self-propelled vehicle that is required to be certified in accordance with the Motor Vehicle Safety Act except for such equipment supplying electrical power from an electrical installation to the vehicle and those portions of a vehicle capable of receiving electrical power from an electrical installation.

Section 2

Add Appendix B Note to Rules 2-000(a) and (h) as follows:

Rule 2-000(a)

Where Codes issued by the Ontario Energy Board under Part V of the Ontario Energy Board Act, 1998, require a connection authorization, this Code applies to electrical installations specified in Item (a). Codes issued by the Ontario Energy Board can be referenced on the Ontario Energy Board website.

2018 ONCJ 640 (*)

Rule 2-000(h)

For electrical vehicles, this Code applies to electrical vehicle supply equipment and requires it to be approved and installed in accordance with applicable Code requirements. This Code does not apply to the inlet or on- board charging equipment as defined by Rule 86-100 that does not provide bi-directional power feed, as specified by Rule 86-308.

The on-board charging equipment is considered to be part of the vehicle and not part of the electrical vehicle supply equipment

[68]In addition, the purpose of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, is stated in s. 1 of that Act. As it relates to consumers, s. 1(f) states that the Electricity Act, 1998 is intended to protect the interests of consumers with respect to prices and the adequacy, reliability and quality of electricity service [emphasis is mine below]:

Purposes

1.The purposes of this Act are,

(a)to ensure the adequacy, safety, sustainability and reliability of electricity supply in Ontario through responsible planning and management of electricity resources, supply and demand;

(b)to encourage electricity conservation and the efficient use of electricity in a manner consistent with the policies of the Government of Ontario;

(c)to facilitate load management in a manner consistent with the policies of the Government of Ontario;

(d)to promote the use of cleaner energy sources and technologies, including alternative energy sources and renewable energy sources, in a manner consistent with the policies of the Government of Ontario;

(e)to provide generators, retailers and consumers with non-discriminatory access to transmission and distribution systems in Ontario;

(f)to protect the interests of consumers with respect to prices and the adequacy, reliability and quality of electricity service;

(g)to promote economic efficiency and sustainability in the generation, transmission, distribution and sale of electricity;

(h)to ensure that Ontario Hydro’s debt is repaid in a prudent manner and that the burden of debt repayment is fairly distributed;

(i)to facilitate the maintenance of a financially viable electricity industry; and

2018 ONCJ 640 (*)

(j)to protect corridor land so that it remains available for uses that benefit the public, while recognizing the primacy of transmission uses.

[69]Furthermore, under s. 1(1) of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, the following definitions are relevant to this proceeding [emphasis is mine below]:

Definitions

1(1) In this Regulation,

“electrical contractor” means a person who is licensed to operate an electrical contracting business under this Regulation;

“electrical equipment” means any apparatus, appliance, device, instrument, fitting, fixture, machinery, material or thing used in or for, or capable of being used in or for, the generation, transformation, transmission, distribution, supply or utilization of electric power or energy, and, without restricting the generality of the foregoing, includes any assemblage or combination of materials or things which is used, or is capable of being used or adapted, to serve or perform any particular purpose or function when connected to an electrical installation, notwithstanding that any of such materials or things may be mechanical, metallic or non-electric in origin;

“electrical installation” means the installation of any wiring in or upon any land, building or premises from the point or points where electric power or energy can be supplied from any source to the point or points where such power or energy can be used in or on the land, building or premises by any electrical equipment, including the connection of any such wiring with any of that equipment, and any part of the wiring, and the maintenance, alteration, extension and repair of such wiring;

“electrical work” means work within the scope of the Electrical Safety Code that consists of constructing, installing, protecting, maintaining, repairing, extending, altering, connecting or disconnecting any electrical installation or electrical equipment;

(2)The use in this Regulation of “employ” and “employee” refers to the employer-employee relationship and not to an arrangement whereby a person engages an independent contractor to work on the person’s behalf.

[70]In addition, ss. 113.13(4)(b), 113.13(6) and 113.13(7) of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, provides that an ESA inspector may “require a person

2018 ONCJ 640 (*)

on the premises being inspected to produce a document, record or other thing that is relevant to the inspection“, and such person that is required to “produce a document, record, electrical product or device, or other thing under clause (4)(b) shall produce it, and shall, on request by the inspector, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce information or a record that is relevant to the inspection and that is in any form [emphasis is mine below]:

Inspections

113.13(1) The Authority or a person appointed as an inspector in writing by the Authority may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time any land or premises, including the business premises of an authorization holder, for the purpose of,

(a)ensuring compliance with this Act and the regulations; or

(b)determining that the authorization holder remains entitled to the authorization.

Limitations on power to enter

(2)An inspector shall not,

(a)use force to enter and inspect land and premises under this section; or

(b)enter any part of premises that are being used as a dwelling, except with the consent of the owner or occupier.

Identification

(3)An inspector shall produce, on request, evidence of his or her appointment as an inspector.

Powers on inspection

(4)An inspector conducting an inspection on any land or in any premises, including premises of an authorization holder, may,

(a)examine all documents, records, electrical products, devices and other things that are relevant to the inspection;

(b)require a person on the premises being inspected to produce a document, record or other thing that is relevant to the inspection;

(c)use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or a record that is relevant to the inspection and that is in any form;

2018 ONCJ 640 (*)

and

(d)subject to subsection (5), on giving a receipt for it, remove any thing relevant to the inspection, including a document, a record, a data storage disk or a retrieval device needed to produce information.

Electrical product not included

(5)An electrical product or device may not be removed under clause (4)

(d).

Obligation to produce and assist

(6)A person who is required to produce a document, record, electrical product or device, or other thing under clause (4)(b) shall produce it and shall, on request by the inspector, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce information or a record that is relevant to the inspection and that is in any form.

Obstruction prohibited

(7)No person shall obstruct an inspector executing his or her duties or withhold from him or her or conceal, alter or destroy any document, record, electrical product or device or other thing that is relevant to the inspection.

Copy and return of removed things

(8)An inspector who removes any document, record or other thing under clause (4) (d) may make a copy of it and shall promptly return it to the person being inspected.

Admissibility of copies

(9)A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

5.ISSUES

[71]The following issues have arisen in this proceeding and need to be resolved:

(1)Whether the prosecution’s application to amend the start date for the alleged offence in count #3 from “January 2, 2012” to “April 8, 2011” should be granted?

2018 ONCJ 640 (*)

(2)Has the defendant proven on a balance of probabilities that there has been an abuse of process based on prosecutorial misconduct which violates s. 7 of the Charter?

(3)Has the defendant proven on a balance of probabilities there has been prosecutorial misconduct in the trial which prejudices the fairness of the trial or undermines the integrity of the judicial process?

(4)If the defendant has proven on a balance of probabilities that there has been an abuse of process based on prosecutorial misconduct, which violates s. 7 of the Charter, then what is the appropriate remedy under s. 24(1)?

(5)If the abuse of process claim has not been established by the defendant, then has the prosecution proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of “operating an electrical contracting business without holding a valid electrical contractor licence” in respect to each of the three residences in question, set out in s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05?

(6)What activity would constitute doing electrical work that would require an electrical contractor’s licence under s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05?

(7)If the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of “operating an electrical contracting business without holding a valid electrical contractor licence” in respect to each of the three residences in question, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, then has the defendant proven on a balance of probabilities that he had taken all reasonable care for the circumstances to avoid committing the respective offences or that he had reasonably believed in a mistaken fact, if true, would make his actions or omissions innocent, which would entitle him to an acquittal for all three charges?

6.ANALYSIS AND DECISION

[72]In order to decide this case, it will first have to be decided if the prosecution’s application should be granted under s. 34 of the Provincial Offences Act, R.S.O.

2018 ONCJ 640 (*)

1990, c. P.33 (“P.O.A.”), to amend the third count on the information, to change the start date of the alleged offence from “January 2, 2012” to “August 8, 2011”.

[73]After the prosecution’s application to amend count #3 is decided, then it will have to be determined if the defendant has proven on a balance of probabilities that s. 7 of the Charter has been infringed for an abuse of process based on prosecutorial misconduct. If the defendant proves on a balance of probabilities that there has been an abuse of process which violates s. 7, then it has to be decided what the appropriate remedy under s. 24(1) should be to remedy the abuse of process.

[74]On the other, if the defendant does not prove on a balance of probabilities that s. 7 has been infringed for an abuse of process based on prosecutorial misconduct, then it will have to be decided whether the prosecution has proven that the defendant has committed the actus reus of the offence of “operating an electrical contracting business without holding a valid electrical contractor licence” beyond a reasonable doubt in respect to the three counts. If the prosecution meets its onus, then it will have to be decided if the defendant has met its burden in proving the defence of due diligence on a balance of probabilities for each of the three counts in order for the defendant to be acquitted of the three charges.

(A)PROSECUTION’S APPLICATION TO AMEND THE START DATE FOR THE CHARGE IN COUNT #3

[75]At the start of the trial, before any testimony or evidence had been entered, the prosecution brought an application to amend the start date for the alleged offence set out in count #3 from “January 2, 2012” to “August 8, 2011”. The decision whether to grant this decision was reserved until the evidence for this particular charge was complete.

[76]The statutory power to make amendments to an information is set out in s. 34 of the Provincial Offences Act, R.S.O. 1990, c. P.33. (P.O.A.), which is the procedural statute that governs regulatory proceedings in Ontario. Section 34 provides that the court may at any stage of the proceeding amend the information as may be necessary, if it appears that the information fails to state or states defectively anything that is requisite to charge the offence, is in any way defective in substance or in form, or if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial. But, in considering whether or not an amendment should be made, consideration of the evidence taken on the trial, the circumstances of the case, whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission, and whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done [emphasis is mine below]:

2018 ONCJ 640 (*)

Amendment of information or certificate

34(1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a)fails to state or states defectively anything that is requisite to charge the offence;

(b)does not negative an exception that should be negatived; or

(c)is in any way defective in substance or in form.

Idem

(2)The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.

Variances between charge and evidence

(3)A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a)the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or

(b)the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

Considerations on amendment

(4)The court shall, in considering whether or not an amendment should be made, consider,

(a)the evidence taken on the trial, if any;

(b)the circumstances of the case;

(c)whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and

(d)whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

Amendment, question of law

(5)The question whether an order to amend an information or certificate should be granted or refused is a question of law.

2018 ONCJ 640 (*)

Endorsement of order to amend

(6)An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended.

[77]The charge in count #3 is in respect to Razeka Bacchus’s house at 94 Narrow Valley Crescent in Brampton. The evidence presented by the prosecution indicates that the agreement between the defendant and Razeka Bacchus to repair and renovate the Bacchus house would have commenced at least on August 8, 2011, after Bacchus had provided the defendant with a cheque for $20,000 that was dated August 8, 2011 (see Exhibit 16) for that renovation work. As such, the defendant would not have been misled or prejudiced in regards to the defendant’s defence by the proposed amendment to change the start date of the alleged offence from “January 2, 2012” to “August 8, 2011”, nor would there be injustice if the proposed amendment were to be made in regards to the merits of the case, as the defendant himself would have known that he had received a cheque from Razeka Bacchus with a particular date, as well as a copy of the $20,000 cheque had been disclosed to the defendant in the prosecution’s disclosure prior to the trial commencing. In addition, the issue of the proposed amendment to count #3 had been also raised at the judicial pre-trial conference when the defendant had been represented by Michael Mahadeo, so that the defendant would not have been surprised about the application by the prosecution for that proposed amendment.

[78]As such, the prosecution’s application to amend count #3 from the start date of “January 2, 2012”, with the start date of “August 8, 2011”, is granted.

(B)THE ABUSE OF PROCESS APPLICATION

(1)The Position Of The Parties

(a)The defendant’s position

[79]For the abuse of process application, the defendant alleges that during the trial when the defendant was unrepresented, the prosecutor had engaged in egregious misconduct, which has caused prejudice to the defendant which has resulted in unfair trial, as well as causing prejudice to the integrity of the judicial process. As such, the defendant submits that his s. 7 Charter rights have been infringed for an abuse of process and seeks, as an appropriate remedy under s. 24(1), a stay of proceedings or, at the very least, a new trial. In addition, the defendant also seeks an additional remedy of an order for costs against the prosecution.

[80]The defendant further submits that it is not only the improprieties in the cross- examination of the defendant that has resulted in serious prejudice, but also the

2018 ONCJ 640 (*)

improprieties during the presentation of the Crown’s case that has compromised and undermined the fairness of the defendant’s trial.

[81]Moreover, the defendant contends that the indecorous conduct of the prosecutor in the course of the defendant’s trial when the defendant was unrepresented has irreparably compromised the fairness of the trial, as well as undermining the integrity of the judicial process. The defendant further submits that the impugned conduct of the prosecutor, which forms the basis for the abuse of process includes: (1) the prosecutor making mocking, demeaning, and sarcastic commentary towards the defendant regarding the defendant’s memory, in the defendant forgetting his eyeglasses, and in the defendant’s difficulty in recalling events; (2) the prosecutor providing personal opinions and editorial commentary about the credibility of the defendant and the believability of the defendant’s defence; (3) the prosecutor giving evidence in the trial; (4) the prosecutor eliciting evidence from his witnesses using leading questions, as well as the prosecutor eliciting damaging and improper opinion, hearsay, irrelevant, and bad character evidence from prosecution witnesses; (5) the prosecutor questioning the defendant on his lack of cooperation with ESA inspectors and investigators and the defendant’s failure to assert his innocence when confronted by ESA inspectors; (6) the prosecutor questioning the defendant on his relationship with his counsel, including the contents of their communications; (7) the prosecutor repeatedly asking the defendant to comment on the veracity of prosecution witnesses; (8) the prosecutor presenting evidence of the defendant’s questionable lifestyle and associations with unsavory persons; (9) the prosecutor arguing with the defendant directly rather than speaking or making submissions through the Court; (10) the prosecutor grilling the defendant on the witnesses he intended to call and the defendant’s efforts to get those witnesses to appear in court; and (11) the prosecutor threatening to request the maximum penalty available for the defendant for arbitrary reasons.

[82]And, because this prosecutorial misconduct has prejudiced the defendant by causing an unfair trial, as well as contravening fundamental notions of justice which would undermine the integrity of the judicial process, then the defendant submits that his s. 7 rights have been violated for abuse of process and that the appropriate remedy under s. 24(1) of the Charter is a stay of proceedings, or at least a new trial if a stay is not appropriate. In addition, the defendant also seeks as a remedy, an order for costs against the prosecution, which has been recognized as an appropriate remedy for in infringement of the Charter: R. v. 974649 Ontario Inc., [2001] S.C.J. No. 79 (S.C.C.).

(b)The prosecution’s position

[83]The prosecution, on the other hand, submits that the present prosecution is under public welfare legislation and not under the Criminal Code of Canada, and that the defendant’s trial was a non-jury trial. Moreover, the prosecution submits there is

2018 ONCJ 640 (*)

also a relevant factor to consider when determining if there has been an abuse of process based on prosecutorial misconduct, is that there is a duty to cooperate with ESA inspectors under the Electricity Act, 1998, the governing legislation.

[84]Furthermore, the prosecution submits that in deciding whether the prosecutor’s conduct during the trial amounts to an abuse of process requires a contextual analysis. In addition, the prosecution submits that the defendant has taken comments of the prosecutor made during the trial completely out of context and without any recognition of what was occurring at the time. In addition, the prosecution submits that the defendant’s abuse of process application contains colour and emotive adjectives to the defendant’s allegations, which are clearly wrong, inappropriate, and offensive.

[85]In addition, the prosecution submits that the defendant has to reach a high bar in order to make out an abuse of process claim. And, even though the defendant is relying on the cumulative effect of the prosecutor’s conduct during the trial, the prosecution contends the defendant has failed to point to one or two things that reek of unfairness. On the other hand, the prosecution submits that the prosecutor and the court had gone out of their way to allow the defendant to have adjournments in order to contact and get witnesses. Moreover, the prosecution submits that the cross-examination of the defendant had not been unfair or improper, nor had it gone from aggressive to abusive, and that some sarcasm in cross-examination is not unreasonable.

[86]Therefore, the prosecution contends that there had been no prosecutorial conduct that would have caused an unfair trial or that would have undermined the integrity of the judicial process, and that the defendant is only making a last-minute attempt to avoid the consequences of an outcome on the merits of the case by having his charges stayed.

(2)The Abuse of Process Doctrine

[87]As it had been identified by L'Heureux-Dubé J. in R. v. O'Connor, [1995] 4 S.C.R. 411 (S.C.C.), at paras. 72 to 75, there are two categories of abuse of process which are caught by s. 7 of the Charter, namely: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. In addition, L'Heureux-Dubé, J. held 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. Furthermore, L'Heureux-Dubé, J. held that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed,

2018 ONCJ 640 (*)

as the focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial [emphasis is mine below]:

I therefore propose to set down some guidelines for evaluating, first, whether there has been a violation of the Charter that invokes concerns analogous to those traditionally raised under the doctrine of abuse of process and, second, the circumstances under which the remedy of a judicial stay of proceedings will be "appropriate and just", as required by s. 24(1) of the Charter.

As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

I would note, moreover, that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found.

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, supra, 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.

2018 ONCJ 640 (*)

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.

[88]Later in R. v. Nixon, [2011] S.C.J. No. 34, which is a case involving a claim of abuse of process based on the Crown’s repudiation of a plea agreement, Charron J., on behalf of the Supreme Court, at paras. 33 to 38, summarized the development of the abuse of process doctrine by the Supreme Court, which culminated in the common law and Charter regimes for abuse of process being merged under s. 7 of the Charter. Furthermore, Charron J. had emphasized that the burden of proof for establishing an abuse of process under s. 7 is on a ”balance of probabilities”, but that in order for a court to grant a stay of proceedings as an appropriate remedy under s. 24(1) when there has been an infringement of s. 7, the infringement would have to be of the “clearest of cases”. Charron J. also confirmed that there are two categories of abuse of process which would be caught by s. 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that "contravenes fundamental notions of justice and thus undermines the integrity of the judicial process". As well, Charron J. recognized that there are remedies available under s. 24(1) for a violation of s. 7 for abuse of process, which would be less than a stay of proceedings. And, in order for a court to find the appropriate remedy when there has been a violation of s. 7 for an abuse of process, Charron J. held that a balance must be achieved between societal and individual concerns, which Charron J. has emphasized, underscores the essential character of abuse of process [emphasis is mine below]:

Until this Court's decision in R. v. Jewitt, [1985] 2 S.C.R. 128, there was much controversy about whether a court had the power to stay validly instituted criminal proceedings for abuse of process. The inherent jurisdiction of a superior court to control its own process by staying abusive proceedings had long been recognized in Canada. However, it remained uncertain whether criminal courts had the discretion to stay proceedings for abuse of process, or whether this was a power reserved for the Attorney General under s. 508 (now s. 579) of the Criminal Code (pp. 131-32).

Jewitt put an end to the uncertainty by recognizing that a trial court judge had a "residual discretion" to stay proceedings to remedy abuse of process. The Court held that the common law doctrine could be applied in narrow circumstances "where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings" (pp. 136-37).

Initially, the common law doctrine of abuse of process was viewed as analytically distinct from Charter considerations since its focus was more on maintaining confidence in the integrity of the judicial system than on protecting individual rights. The common law and Charter analyses were also kept separate because of the different burdens of proof to successfully make out an abuse of process claim under the two regimes. For an applicant to establish a violation under the

2018 ONCJ 640 (*)

Charter, the burden of proof was the balance of probabilities standard. For an applicant to successfully invoke the court's common law power to stay proceedings for abuse of process, the burden of proof was the more onerous "clearest of cases" standard.

Ten years later in R. v. O'Connor, [1995] 4 S.C.R. 411, the Court noted that there was much overlap between the Charter and the common law doctrine of abuse of process, as the latter had found application in circumstances involving state conduct touching upon both "the integrity of the judicial system and the fairness of the individual accused's trial" (para. 73). Consequently, L'Heureux-Dubé J., writing for a unanimous Court on this point, held that the two regimes should be merged under s. 7 of the Charter. Depending on the circumstances, different Charter guarantees may be engaged by the alleged abuse of process and thus some claims may be better addressed by reference to the specific procedural guarantee. For example, "where the accused claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b)" (para. 73). The Court identified two categories of abuse of process which would be caught by s. 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that "contravenes fundamental notions of justice and thus undermines the integrity of the judicial process" (para. 73).

The Court held further that there was no practical utility in maintaining two distinct analytic regimes based on the different burdens of proof. Even if a violation of s. 7 is proved on a balance of probabilities, the court would still have to determine the appropriate remedy under s. 24(1) of the Charter and the "clearest of cases" burden would still apply to justify the remedy of a judicial stay of proceedings (para. 69). The Court made clear, however, that the fusion of common law and Charter claims of abuse of process under s. 7 of the Charter does not alter "the essential balancing character of abuse of process". L'Heureux-Dubé J. explained as follows (at para. 69):

Remedies less drastic than a stay of proceedings are of course available under s. 24(1) in situations where the "clearest of cases" threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated. In this respect the Charter regime is more flexible than the common law doctrine of abuse of process. However, this is not a reason to retain a separate common law regime. It is important to recognize that the Charter has now put into judges' hands a scalpel instead of an axe - a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system. Even at common law, courts have given consideration to the societal (not to mention individual) interests in obtaining a final adjudication of guilt or innocence in cases involving serious offences... . I see no reason why such balancing cannot be performed equally, if not more, effectively under the Charter, both in terms of defining violations and in terms of selecting the appropriate remedy to perceived violations. [Emphasis added.]

Thus, in defining what constitutes a violation, it is important to recall what kind of harm the common law doctrine of abuse of process was intended to address and, in turn, why this degree of harm called for a stay of proceedings as the appropriate remedy. In other words, while s. 24(1) of the Charter allows for a

2018 ONCJ 640 (*)

wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused's fair trial interests or to the integrity of the justice system. Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.

[89]Moreover, at paras. 39 to 41, in R. v. Nixon, Charron J. outlined the key differences between the two categories of abuse of process. Under the first or

“main” category for abuse of process, Charron J. held that the concern is about the fairness of the accused's trial and that establishing prejudice to the requisite degree would be the key to meeting the test, but that proof of prosecutorial misconduct, while relevant, is not a prerequisite. On the other hand, for the second or “residual” category for abuse of process, Charron J. held that prejudice to the accused's interests, although relevant, is not determinative in finding that there has been an abuse of process, since for most cases in the residual category, the accused would need to demonstrate that he or she had been prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. As such, Charron J. held that prejudice under the residual category is better conceptualized as an act tending to undermine society's expectations of fairness in the administration of justice [emphasis is mine below]:

Under the first category of cases, the concern is about the fairness of the accused's trial. Establishing prejudice of the requisite degree is key to meeting the test; proof of prosecutorial misconduct, while relevant, is not a prerequisite: R. v. Keyowski, [1988] 1 S.C.R. 657. In Keyowski, the accused's first two trials ended with the jury failing to agree on a verdict; his third trial was stayed by the trial judge for abuse of process. The narrow issue on appeal was whether a series of trials could, in and of itself, constitute an abuse of process, or whether it was necessary for the accused to show prosecutorial misconduct.

The Court reiterated that the test for abuse of process was whether "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious" (pp. 658-59, quoting from Jewitt, at

pp.136-37). While the Court concluded that the Crown's exercise of discretion to proceed with a third trial did not constitute an abuse of process in the circumstances of the case, the Court held that the test could be made out in the absence of prosecutorial discretion. Wilson J. explained as follows (at p. 659):

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 the number of trials that could take place. Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account 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 the indictment amounts to an abuse of process.

2018 ONCJ 640 (*)

Under the residual category of cases, prejudice to the accused's interests, although relevant, is not determinative. Of course, in most cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an act tending to undermine society's expectations of fairness in the administration of justice. This essential balancing character of abuse of process under the residual category of cases was well captured by the words of L'Heureux-Dubé J. in R. v. Conway, [1989] 1 S.C.R. 1659. She stated the following:

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society" (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Emphasis added; p. 1667.]

[90]Subsequently, in R. v. Babos, [2014] S.C.J. No. 16, at paras. 30 and 31, Moldaver J., for the Supreme Court, emphasized that there are rare occasions, in the "clearest of cases", when a stay of proceedings for an abuse of process would be warranted. Moldaver J. also confirmed that abuse of process cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) [emphasis is mine below]:

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions -the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73). …

(a)The burden of proof for establishing an abuse of process

2018 ONCJ 640 (*)

[91]In R. v. Anderson, [2014] S.C.J. No. 41 (S.C.C.), at paras. 52 to 56, Moldaver J., writing for the Supreme Court, confirmed that the evidentiary burden of proof for establishing an abuse of process lies on the claimant, who must prove it on a balance of probabilities. In addition, Moldaver J. reiterated that there must be a "proper evidentiary foundation" before the abuse of process claim should proceed [emphasis is mine below]:

The burden of proof for establishing abuse of process lies on the claimant, who must prove it on a balance of probabilities: Cook, at para. 62; R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 69, per L'Heureux-Dubé J.; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 19. However, given the unique nature of prosecutorial discretion - specifically, the fact that the Crown will typically (if not always) be the only party who will know why a particular decision was made -- this Court in Nixon recognized that where prosecutorial discretion is challenged, the Crown may be required to provide reasons justifying its decision where the claimant establishes a proper evidentiary foundation: para. 60.

In Nixon, this Court noted the following reasons as to why there must be a "proper evidentiary foundation" before the abuse of process claim should proceed:

... mandating a preliminary determination on the utility of a Charter-based inquiry is not new: R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343. Similar thresholds are also imposed in other areas of the criminal law, they are not an anomaly. Threshold requirements may be imposed for pragmatic reasons alone. As this Court observed in Pires (at para. 35):

For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable [page192] to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitutes an abuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process. [Emphasis added; paras. 61-62.]

Nixon involved the Crown's repudiation of a plea agreement. The Court held that the repudiation of a plea agreement was "a rare and exceptional event" that met the evidentiary threshold and justified an inquiry into the propriety of the Crown's decision: Nixon, at para. 63. Indeed, the evidence in Nixon was that only two other plea agreements had been repudiated in Alberta's history. As a result, the Court held that

to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains

2018 ONCJ 640 (*)

on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim. [para. 63]

Requiring the claimant to establish a proper evidentiary foundation before embarking on an inquiry into the reasons behind the exercise of prosecutorial discretion respects the presumption that prosecutorial discretion is exercised in good faith: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 95. It also accords with this Court's statement in Sriskandarajah, at para. 27, that "prosecutorial [page193] authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives" (emphasis added).

Finally, I note that the content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion. Policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor's conduct was appropriate in the particular circumstances. See R. J. Frater, Prosecutorial Misconduct (2009), at p. 259. For example, a decision by a Crown prosecutor that appears to contravene a Crown policy or guideline may provide some evidence that assists the claimant in establishing the threshold evidentiary foundation. However, as the intervener the Director of Public Prosecutions of Canada submits, Crown policies and guidelines do not have the force of law, and cannot themselves be subjected to Charter scrutiny in the abstract: see R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 45 (discussing police practices manuals).

(b)The test for determining whether a stay of proceedings is appropriate when there is an abuse of process

[92]Moldaver J., writing for the majority of the Supreme Court, in R. v. Babos, [2014] S.C.J. No. 16, held at para. 32, that the test which is to be used to determine whether a stay of proceedings is warranted for state conduct is the same for both the “main” category, which is the fairness of the accused’s trial, and the “residual” category, which concerns conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process. Furthermore, Moldaver J. held that the test consists of three requirements: (1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome"; (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" [emphasis is mine below]:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

2018 ONCJ 640 (*)

(1)There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2)There must be no alternative remedy capable of redressing the prejudice; and

(3)Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[93]Furthermore, Moldaver J. noted, at paras. 33 to 35, in R. v. Babos, that even though the framework is the same for both categories, the test may - and often will

-play out differently depending on whether the "main" or "residual" category is invoked. Moldaver J. also clarified that with the first stage of the test, when the “main” category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial. In other words, Moldaver J. explained that the concern is whether there is ongoing unfairness to the accused. On the other hand, when the residual category is invoked, Moldaver J. noted that the question becomes whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. On the other hand, Moldaver J. also recognized that at times, state conduct would be so troublesome that having a trial - even a fair one – would leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. In those kinds of cases, Moldaver J. indicated that the first stage of the test would be met [emphasis is mine below]:

The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids "schizophrenia" in the law (O'Connor, at para. 71). But while the framework is the same for both categories, the test may - and often will

-play out differently depending on whether the "main" or "residual" category is invoked.

Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.

By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and

2018 ONCJ 640 (*)

decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[94]Moldaver J. then, at paras. 36 to 38, in R. v. Babos, went onto explain that while it is generally true that the residual category would be invoked as a result of state misconduct, it will not always be so, since circumstances may arise where the integrity of the justice system is still implicated despite the absence of misconduct, such as when an accused is repeatedly prosecuted for the same offence after successive juries had been unable to reach a verdict. Moldaver J. also noted that regardless of the type of conduct complained of in a residual category case, the question to be answered at the first stage of the test is the same, which is whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system [emphasis is mine below]:

In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, this Court described the residual category in the following way:

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well

-society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 91]

Two points of interest arise from this description. First, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example (see, e.g., R. v. Keyowski, [1988] 1 S.C.R. 657), as does using the criminal courts to collect a civil debt (see, e.g., R. v. Waugh (1985), 68 N.S.R. (2d) 247 (S.C., App. Div.)).

Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.

2018 ONCJ 640 (*)

[95]As well, Moldaver J. noted at para. 39 in R. v. Babos, that for the second stage of the test in deciding whether a stay of proceedings should be granted, the question to be resolved is whether any other remedy short of a stay is capable of redressing the prejudice. Moldaver J. then explained that different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the “main” category) or whether it relates to the integrity of the justice system (the “residual” category). Where the concern is trial fairness, Moldaver J. indicated that the focus is on restoring an accused's right to a fair trial and that procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. On the other hand, where the residual category is invoked, and the prejudice complained of is prejudice to the integrity of the justice system, Moldaver indicated that the remedies must be directed towards that harm, and in so doing, the focus is on whether an alternate remedy short of a stay of proceedings would adequately dissociate the justice system from the impugned state conduct going forward [emphasis is mine below]:

At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[96]Finally, for the third stage of the test for deciding whether a stay of proceedings is the appropriate remedy, Moldaver J. held at paras. 40 to 44 in R. v. Babos, that there is a balancing of interests that occurs at the third stage of the test, which takes on added significance when the residual category is invoked. Furthermore, Moldaver J. reiterated that this balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed. On the other hand, when the main category is invoked, Moldaver J. noted that it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, then another remedy short of a stay would be available to address the concern. In those cases, Moldaver J. emphasized that no balancing is required. Moldaver J. also indicated that in the "clearest of cases" which would be rare, in which it would be evident that state conduct has permanently prevented a fair trial from taking place, then the third and final balancing step will often add little to the inquiry, as society has

2018 ONCJ 640 (*)

no interest in unfair trials. However, Moldaver J. explained that for the third stage of the test when the residual category is invoked, in which prejudice to the integrity of the justice system is alleged, then the court is asked to decide which of two options would better for protecting the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. Moldaver J. also held that this particular inquiry essentially demands balancing, and the court in conducting this balancing must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. In addition, Moldaver J. stressed that the more egregious the state conduct, the greater the need for the court to dissociate itself from it. Moldaver J. also reasoned that when the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits would prevail in the balancing process. On the other hand, for residual category cases, Moldaver J. emphasized that the balancing of societal interests that must take place, along with the application of the "clearest of cases" threshold presents an accused who seeks a stay under the residual category with an onerous burden, so that cases warranting a stay of proceedings will be "exceptional" and "very rare" in the residual category. Accordingly, Moldaver J. noted that only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings would be warranted [emphasis is mine below]:

Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed (Tobiass, at para. 92). When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these "clearest of cases", the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.

However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's

2018 ONCJ 640 (*)

interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

This Court's recent decision in R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, attests to the need for balancing when the conduct in question falls solely within the residual category. In Bellusci, the accused was assaulted in the back of a van by a prison guard while he was shackled and handcuffed. The accused was charged with assaulting the guard and intimidating a justice system participant. Fish J., writing for a unanimous Court, upheld the trial judge's decision to issue a stay of proceedings for state misconduct falling in the residual category. In doing so, he noted that the trial judge had

appreciated the need to balance the competing interests at play in contemplating a stay of proceedings. He expressly took into account the difficult position of prison guards, the importance to the justice system of ensuring their protection, the seriousness of the charges against the accused, the integrity of the justice system, and the nature and gravity of the violation of Mr. Bellusci's rights. Only then did he conclude that a stay was warranted. [Emphasis added; para. 29.]

The Ontario Court of Appeal has also recently emphasized the importance of the balancing stage when the residual category is in issue:

In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. [Emphasis added.]

(R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 60)

Undoubtedly, the balancing of societal interests that must take place and the "clearest of cases" threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be "exceptional" and "very rare" (Tobiass, at para. 91). But this is as it should be. It is only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will be warranted (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667).

(c)Available remedies for an abuse of process

[97]In regards to the available remedies that could be granted, when it is determined that s. 7 of the Charter has been infringed for an abuse of process, the Supreme Court of Canada no longer restricts the remedy to only a stay of proceedings under s. 24(1). Now, as emphasized by Moldaver J. in R. v. Babos, [2014] S.C.J. No. 16 (S.C.C.), an appropriate remedy may be less than a stay of proceedings for an abuse of process. Moldaver J. also held at para. 39 of R. v. Babos, that at the second stage of the test, the question to be resolved is whether any other remedy

2018 ONCJ 640 (*)

short of a stay of proceedings is capable of redressing the prejudice. In addition, Moldaver J. indicated that where the concern is on trial fairness, the focus would be on restoring an accused's right to a fair trial, which could be remedied procedurally by ordering a new trial. On the other hand, where the residual category is invoked in which the prejudice complained of is prejudice to the integrity of the justice system, Moldaver J. held that the remedy must be directed towards that harm. And, for those cases which fall solely within the residual category, Moldaver J. explained that the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past; rather the focus is on whether an alternate remedy short of a stay of proceedings would adequately dissociate the justice system from the impugned state conduct going forward [emphasis is mine below]:

At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Here, procedural remedies, such [page325] as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[98]Also, in R. v. Taillefer; R. v. Duguay, [2003] S.C.J. No. 75, at paras. 117 to 119, the Supreme Court held that the remedy of a stay of proceedings is only appropriate in the “clearest of cases” and 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. In addition, the Supreme Court held that a stay of proceedings will be an appropriate and fair remedy where: (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. Moreover, the Supreme Court held that the purpose of a stay of proceedings used to punish blameworthy conduct on the part of the State is a remedy that is primarily meant to prevent an abuse from being perpetuated or aggravated [emphasis is mine below]:

This Court has frequently underlined the draconian nature of a stay of proceedings, which should be ordered only in exceptional circumstances. A stay of proceedings is appropriate only "in the clearest of cases", that is, "where the prejudice to the accused's right to make full answer and defence cannot be

2018 ONCJ 640 (*)

remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued" (O'Connor, supra, at para. 82). It is a "last resort" remedy, "to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted" (O'Connor, supra, at para. 77; see also Tobiass, supra, at paras. 89-90; Carosella, supra, at paras. 52-53; Regan, supra, at paras. 53 et seq.).

In O'Connor, supra, at para. 75, this Court adopted principles to circumscribe the power to order a stay of proceedings. These principles confirm the seriousness of such a decision and the need for a careful and balanced analysis of all the interests at stake -- the interests of the accused, of course, but also the interest of the public in crime being punished and in criminal cases being diligently prosecuted. Those principles hold that a stay of proceedings will be an appropriate and fair remedy where:

(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.

These criteria recognize the prospective rather than retroactive nature of the remedy. Although, in very rare circumstances, the conduct of the prosecution may be so serious that a stay of proceedings is required in order to avoid bringing our system of justice into disrepute, it is not the purpose of this remedy to punish blameworthy conduct on the part of the State. The remedy is primarily meant to prevent an abuse from being perpetuated or aggravated (Regan, supra, at para. 54; Tobiass, supra, at para. 91).

[99]Furthermore, in R. v. White, [1999] S.C.J. No. 28, at paras. 87 to 89, the Supreme Court has held that exclusion of evidence can be a remedy under s. 24(1) for an abuse of process under s. 7 [emphasis is mine below]:

The possibility of excluding evidence under s. 24(1) of the Charter was addressed again more recently in Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841. In concurring reasons, Lamer C.J. stated, at para. 24, that evidence may be excluded under a combination of ss. 7 and 24(1) of the Charter where the use of such evidence would affect trial fairness. Lamer C.J. cited on this point the decisions of the Court in Harrer, supra, as well as R. v. Terry, [1996] 2 S.C.R. 207, where the Court held that an accused may use ss. 7 and 11(d) of the Charter to obtain redress where the admission of evidence would violate the Charter. Speaking for the majority of the Court in Schreiber, L'Heureux-Dubé J. stated, at para. 35, that she agreed with the Chief Justice that s. 7 may apply to justify excluding evidence where it is necessary to preserve the fairness of the trial. L'Heureux-Dubé J. did not specifically advert to the possible role of s. 24(1).

Thus it may be seen that this Court has never affirmatively decided that s. 24(1) of the Charter may serve as the mechanism for the exclusion of evidence whose

2018 ONCJ 640 (*)

admission at trial would violate the Charter. In the present appeal, the parties and the courts below appear to have proceeded on the basis that s. 24(1) is the appropriate mechanism for exclusion of evidence whose admission would contravene the principle against self-incrimination under s. 7. None of the argument before this Court was directed to this specific issue.

Although I agree with the majority position in Harrer, supra, that it may not be necessary to use s. 24(1) in order to exclude evidence whose admission would render the trial unfair, I agree also with McLachlin J.'s finding in that case that s. 24(1) may appropriately be employed as a discrete source of a court's power to exclude such evidence. In the present case, involving an accused who is entitled under s. 7 to use immunity in relation to certain compelled statements in subsequent criminal proceedings, exclusion of the evidence is required. Although the trial judge could have excluded the evidence pursuant to his common law duty to exclude evidence whose admission would render the trial unfair, he chose instead to exclude the evidence pursuant to s. 24(1) of the Charter. I agree that he was entitled to do so.

[100]In addition, the Supreme Court has held in R. v. 974649 Ontario Inc., [2001] S.C.J. No. 79, at paras. 94 to 97, that a Provincial Offences Court can order costs against the Crown as remedy under s. 24(1) in respect to a provincial offences trial in Ontario [emphasis is mine below]:

The language of the POA, however, cannot be ignored. If it indicates that the legislature did not intend the provincial offences courts to issue costs orders as a Charter remedy, then these courts are not so empowered. This brings us to the Crown's argument that the legislature confined the power of POA justices to grant costs (and, even then, only witness costs) to specific procedural breaches and that this indicates an intention not to permit them to grant Charter remedies for costs in matters other than those prescribed by the POA.

I cannot accept this argument. Given all the elements in this case that point to the power to make the order sought under s. 24, I find it difficult to infer a contrary intention from the fact that the statute does not confer on the court a general right to award legal costs. The legislature gave the court functions destined to attract Charter issues. These functions by their nature are likely to bring the tribunal into the domain of Charter rights. They necessarily implicate matters covered by the Charter, including fair trial rights and remedies for violations of these rights. It is therefore reasonable to assume that the legislature intended the POA court to deal with those Charter issues incidental to its process that it is suited to resolve, by virtue of its function and structure.

In criminal proceedings, incidental Charter issues are routinely resolved at the trial stage without recourse to other proceedings, a procedure repeatedly endorsed by this Court as desirable: Mills, supra; Rahey, supra; R. v. Garofoli, [1990] 2 S.C.R. 1421; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53. It is logical to assume that the Ontario Legislature intended the POA to operate in tandem with the Charter, rather than to negate the Charter's application. Rather than inferring that the legislature intended to narrow the operation of the Charter with its silence

2018 ONCJ 640 (*)

on the issue of the provincial offences court's jurisdiction under s. 24, the more reasonable inference is that it intended to supplement the court's work with the incidental Charter remedies that it is suited to issue.

Consequently, I conclude that the provincial offences court enjoys the necessary power to grant the remedy sought in the present case, and is thus a "court of competent jurisdiction" within the meaning of s. 24(1). In my opinion, this result represents an appropriate and principled integration of the procedural regime established by the legislature and the constitutional regime established by the Charter.

(2)Provincial Offences Trials

(a)The purpose of a trial

[101]The Supreme Court of Canada has indicated in R. v. Levogiannis, [1993] S.C.J. No. 70 (S.C.C.), at paras. 13 and 19, that a trial is the process by which a judge attempts to ascertain the truth and that the goal of the court process is truth seeking. Moreover, the Supreme Court noted that the principles of fundamental justice provided by s. 7 of the Charter require that the criminal process be a fair one and that this process must enable the trier of fact to get at the truth, and properly and fairly dispose of the case, while at the same time providing the accused with the opportunity to make a full defence [emphasis is mine below]:

The examination of whether an accused's rights are infringed encompasses multifaceted considerations, such as the rights of witnesses, in this case children, the rights of accused and courts' duties to ascertain the truth. The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.

The principles of fundamental justice provided by s. 7 must reflect a diversity of interests, including the rights of an accused, as well as the interests of society (R. v. Seaboyer, supra, at p. 603; Cunningham v. Canada, [1993] 2 S.C.R. 143; and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519). While the objective of the judicial process is the attainment of truth, as this Court has reiterated in L. (D.O.), supra, the principles of fundamental justice require that the criminal process be a fair one. It must enable the trier of fact to "get at the truth and properly and fairly dispose of the case" while at the same time providing the accused with the opportunity to make a full defence (R. v. Seaboyer, supra, at p. 608).

[102]In addition, the Court of Appeal for Ontario in R. v. Chamandy, [1934] O.J. No. 235, at para. 7, also emphasized that a criminal trial should not be viewed as a contest between individuals, nor is it to be viewed as a contest between the Crown and the accused; rather it is an investigation that should be conducted without

2018 ONCJ 640 (*)

animus on the part of the prosecution, with the single view of determining the truth [emphasis is mine below]:

It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between the Crown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining the truth.

[103]Furthermore, the Supreme Court noted, at para. 44, in R v Handy, [2002] S.C.J. No. 57, that a trial is fundamentally about the search for the truth as well as fairness to the accused:

The criminal trial is, after all, about the search for truth as well as fairness to an accused. …

(b)Provincial offences trials involving strict liability offences are, for the most part, different from criminal trials substantively and procedurally, especially in respect to the mental element to be proven and in respect to evidential burdens of proof.

[104]In respect to the nature of regulatory or public welfare offences, such as the ones that the defendant has been charged with, the Supreme Court has indicated in R.

v.Sault Ste. Marie, [1978] 2 S.C.R. 1299, that prosecutions under the regulatory sphere are different in some aspects from criminal trials, especially that “strict liability” and “absolute liability” categories of regulatory offences do not require the prosecution to prove any mental element to obtain a conviction. The Supreme Court had reasoned that it had been necessary to relieve the Crown of the burden of proving mens rea because of the virtual impossibility in most regulatory cases of proving wrongful intention, since in a normal case, the accused alone would have knowledge of what the accused has done to avoid the breach so that it would not be improper to expect or place the burden on the accused to come forward with the evidence of due diligence. Therefore, the Supreme Court explained that while the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the accused must only establish on the balance of probabilities that the accused has a defence of reasonable care. In addition, the Supreme Court held that public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and social interests [emphasis is mine below]:

The distinction between the true criminal offence and the public welfare offence is one of the prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is

2018 ONCJ 640 (*)

excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.

In sharp contrast, "absolute liability" entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense, yet be branded as a male factor and punished as such.

Public welfare offences obviously lie in a field of conflicting values. It is essential for society to maintain, through effective enforcement, high standards of public health and safety. Potential victims of those who carry on latently pernicious activities have a strong claim to consideration. On the other hand, there is a generally held revulsion against punishment of the morally innocent.

Public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and social interests. See Sayre, Public Welfare Offences (1933), 33 Colum. L. Rev. 55; Hall, Principles of Criminal Law, (1947), ch. 13; Perkins, The Civil Offence (1952), 100 U. of Pa. L. Rev. 832; Jobson, Far From Clear, 18 Crim. L. Q. 294. The unfortunate tendency in may past cases has been to see the choice as between two stark alternatives;

(i)full mens rea; or (ii) absolute liability. In respect of public welfare offences (within which category pollution offences fall) where full mens rea is not required, absolute liability has often been imposed. English jurisprudence has consistently maintained this dichotomy: see Hals. (4th ed.), Vol. II, Criminal Law, Evidence and Procedure, para. 18. There has, however, been an attempt in Australia, in many Canadian courts, and indeed in England, to seek a middle position, fulfilling the goals of public welfare offences while still not punishing the entirely blameless. There is an increasing and impressive stream of authority which holds that where an offence does not require full mens rea, it is nevertheless a good defence for the defendant to prove that he was not negligent.

The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation. Equally, there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care.

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which

2018 ONCJ 640 (*)

denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1.Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2.Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3.Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[105]Hence, for the most part, the principal distinctions between criminal and regulatory offences are most apparent when the regulatory offence is a strict liability offence. In that situation, the prosecution is not required to prove the mens rea element that is required to be proven in a criminal trial. Furthermore, if the prosecution meets its burden in proving that the defendant has committed the prohibited act or actus reus of the offence beyond a reasonable doubt, then in order for the accused not to be convicted of committing the offence, the accused has the legal burden of proving a defence of due diligence on a balance of probabilities.

2018 ONCJ 640 (*)

(i)The present trial was not a jury trial

[106]But most importantly, the present trial is not a jury trial, but a trial by judicial officer alone. And, as such, any irrelevant, hearsay, opinion, or bad character evidence that is provided through witnesses, or testimony obtained through leading questions of the prosecutor’s own witnesses, or improper personal views or opinions of the prosecutor about the defendant’s character or on the defendant’s guilt or on the credibility or incredibility of witnesses, can be ignored and

disabused. Equally, any improper comments, inappropriate sarcasm, or intemperate tone from the prosecutor in the present trial would not have the same prejudicial effect that it would or could have in a jury trial. Nor, is there a potential in the present trial, as it would or could in a jury trial, that the trier would make an improper inference that the defendant is guilty simply because there is evidence adduced improperly of the defendant’s bad character.

[107]In R. v. T.B., [2009] O.J. No. 751, at paras. 26 to 34, the Court of Appeal for Ontario held that reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in a non-jury trial. Moreover, the Court of Appeal noted that one reason why there would be less concern in a non-jury trial is that trial judges are presumed to know the law and the proper and improper uses of evidence. In addition, the Court of Appeal reasoned that the danger that an accused would be convicted solely on the basis of the accused ‘s general bad behaviour had not been a significant concern in a non-jury trial, since moral prejudice is not a significant risk in a judge-alone trial [emphasis is mine below]:

As explained in Handy, prejudice in the similar fact context involves two distinct concepts - "reasoning prejudice" and "moral prejudice". One of the reasons the trial judge excluded the evidence was on the ground of moral prejudice. Reasoning prejudice includes the danger that the jury might be confused by the multiplicity of incidents and/or might put more weight than is logically justified on the similar fact evidence, and also raises concerns regarding undue consumption of time involved in receiving evidence of allegations unrelated to the charges against the accused. Moral prejudice concerns the risk that the evidence might lead to a conviction on nothing more than "bad personhood". In other words, the trier of fact may find the accused guilty not because of the probative value of the evidence regarding the issue at trial, but rather because the evidence establishes that the accused is a bad person deserving of punishment. Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in a non- jury trial, as this was. Nevertheless, the trial judge was concerned about moral prejudice.

As the proposed similar fact evidence in this case was related to all the counts in the indictment and the evidence was already before the court, and because this was a non-jury trial, reasoning prejudice was not a real issue. Unlike cases such as Handy, this was not a case where the proposed similar fact evidence was extrinsic to the charges before the court and required extra witnesses to present it. The only additional time needed as a result of the similar fact evidence was the

2018 ONCJ 640 (*)

time required to argue the motion to admit it. As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge's determination that the evidence would confuse him or induce him to put more weight on it than is logically justified.

In his lecture entitled "Similar Fact Evidence" in Special Lectures 2003: The Law

of Evidence (Toronto: The Law Society of Upper Canada, 2004), Rosenberg J.A. wrote at p. 414:

The similar fact rule is very much driven by the jury system and the danger that laypersons will give undue weight to frail but highly prejudicial evidence.

A similar view was expressed by this court in R. v. L.W. (2004), 191 O.A.C. 22, at para. 9:

It is important to keep in mind that the risk of prejudice was much reduced because of the fact that this was a trial by judge alone.

R. v. MacCormack, [2009] O.J. No. 302, 2009 ONCA 72, released January 27, 2009, like this case, concerned a defendant on trial on multiple counts. At para. 56, Watt J.A. said:

The test for the admissibility of evidence of similar acts offered to prove identity is the same whether the alleged similar acts are extrinsic to the counts in the indictment, or contained in other counts of the same indictment: Arp, [1998] 3 S.C.R. 339, at para. 51. The same test notwithstanding, some of the factors relevant to an assessment of prejudice may have an attenuated influence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where the case is tried by judge sitting without a jury.

Watt J.A. added at paras. 68 and 69:

This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.

In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi- count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial.

2018 ONCJ 640 (*)

In R. v. Cresswell, [2009] O.J. No. 363, 2009 ONCA 95, a decision of this court released January 30, 2009, the appellant was tried on six counts of sexual assault in a non-jury trial. The court rejected the appellant's submissions that the trial judge erred by ruling that the evidence on each count was admissible as similar fact evidence on all the other counts. Relevant to this appeal is what the court said at paras. 9 and 10:

We note as well that Handy states that admissibility is conditioned by the issue to which the evidence is directed. Here, the evidence went not to identity, where distinctive features amounting to a "signature" may be required, but rather to the actus reus, where less cogent similarities may render the evidence admissible.

Finally, we observe that this was a judge alone trial on a multi-count indictment. There was no severance application and it was inevitable that the judge deciding the case would hear all of the evidence. While this, of course, does not by itself render the evidence admissible across all counts, it significantly reduces the risk of prejudice. Moreover, in his reasons, the trial judge properly identified the permitted use of similar fact evidence and cautioned himself against prohibited lines of reasoning.

Nevertheless, the trial judge in the case at bar dismissed the application to use the evidence on all counts as similar fact evidence on the others, in part on the basis that its moral prejudice would outweigh its probative value. He found:

When one compares the probative value of the evidence, set out above, to the possible prejudice to the accused, in other words, that prejudice being that the accused runs the risk of being convicted because of his bad character, rather than because of proof that he committed the offences, the application to admit similar fact evidence by the Crown must fail. [Emphasis added.]

This ruling reflected three misapprehensions.

First, this was a non-jury trial, in which the danger that an accused would be convicted solely on the basis of his general bad behaviour was not a significant concern. Moral prejudice is not a significant risk in a judge-alone trial. Second, dismissal of the application to introduce similar fact evidence did nothing to address the probability of moral prejudice. The trial judge had already heard the evidence as part of the Crown's case. Thus, the trial judge's knowledge of evidence casting the respondent in a poor light was not eliminated by its exclusion as similar fact evidence. The only issue was whether the already admitted evidence could be used for another purpose. Third, to the extent that there is a risk of moral prejudice in a judge-alone trial is possible, the trial judge failed to appreciate, with respect to counts one to nine, that prejudice was much reduced as none of the underlying incidents were more reprehensible than the others. The allegations regarding each count that applied to M. were virtually the same, and were quite similar to the incidents related by R., especially those that took place in the respondent's truck.

In summary, in this case of a multiple count indictment, the issue for the trial judge was whether the evidence regarding other counts had sufficient probative value to support a legitimate chain of reasoning furnishing evidence of any individual count. However, the trial judge never reached this stage in his analysis.

2018 ONCJ 640 (*)

This was because he misapprehended both the Crown's position and the law regarding the legitimate use of similar fact evidence in a multiple-count indictment tried by a judge without a jury. These errors were compounded by the trial judge's misapprehension that the moral prejudice of the evidence was too great to admit the evidence. Moreover, had the trial judge admitted the similar fact evidence, the trial judge would have had the very thing that he felt was missing to support a conviction on all counts - corroboration.

(ii)Trial judges are able to disabuse their minds of irrelevant or inadmissible prejudicial evidence.

[108]In considering that the defendant’s trial was a non-jury trial, the concern that the defendant would not receive a fair trial because of irrelevant prejudicial evidence being adduced by the prosecutor into the trial, especially bad character evidence, is much less in a non-jury trial than in a jury trial, as a judge is trained to screen out inadmissible evidence and disabuse himself or herself of such evidence and to attach no weight to that evidence, as well as knowing not to improperly use it as proof of guilt. This principle that judges can disabuse their minds of irrelevant or inadmissible prejudicial evidence is confirmed by the Supreme Court of Canada at para. 35 in R. v. Stinchcombe, [1991] S.C.J. No. 83 [emphasis is mine below]:

Applying the above principles, I conclude that the following errors were committed:

(1)Counsel for the Crown misconceived his obligation to disclose the statements;

(2)The explanation for refusal that the witness was not worthy of credit was completely inadequate to support the exercise of this discretion on the ground of irrelevance. Whether the witness is credible is for the trial judge to determine after hearing the evidence;

(3)The trial judge ought to have examined the statements. The suggestion that this would have prejudiced the trial judge is without merit. Trial judges are frequently apprised of evidence which is ruled inadmissible. One example is a confession that fails to meet the test of voluntariness. No one would suggest that knowledge of such evidence prejudices the trial judge. We operate on the principle that a judge trained to screen out inadmissible evidence will disabuse himself or herself of such evidence;

(4)The trial judge erred in his statement of the duty to disclose on the part of the Crown.

[109]Moreover, in R. v. Sekhon, [2014] S.C.J. No. 15 (S.C.C.), at paras. 46 to 48, Moldaver J. held that judges are accustomed to disabusing their minds of inadmissible evidence and not assigning any weight to the inadmissible evidence [emphasis is mine below]:

2018 ONCJ 640 (*)

Given the concerns about the impact expert evidence can have on a trial - including the possibility that experts may usurp the role of the trier of fact - trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges - including those in judge-alone trials - have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert's testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert's testimony, the testimony remains within the proper boundaries of expert evidence. As noted by Doherty J.A. in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 62:

The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal ... . [Emphasis added; citations omitted.]

The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.

It is foreseeable that mistakes will be made and that, as happened in the instant case, testimony that strays beyond the proper scope of the expert evidence will be given. It is also foreseeable that defence counsel may fail to object to the testimony at the time the problematic statements are made. In a jury trial, once the statements have been made, it may be somewhat more difficult to address the problem - but a remedial instruction advising the jury to disabuse their minds of the inadmissible evidence will generally suffice. Judges, on the other hand, are accustomed to disabusing their minds of inadmissible evidence. It goes without saying that where the expert evidence strays beyond its proper scope, it is imperative that the trial judge not assign any weight to the inadmissible parts.

(iii)For strict liability offences, the prosecution can elicit rebuttal evidence during its case-in-chief, which would anticipate the due diligence defence or other defences being raised.

[110]The defendant also contends that the prosecutor’s cross-examination of the defendant had been improper and unfair, especially when questions were put to the defendant about the defendant’s lack of cooperation with the ESA investigators or inspectors who had been conducting inspections or investigations of the three residences in question, or in not informing the inspectors of the defendant’s innocence. Of course, the defendant has a right to remain silent and not to

2018 ONCJ 640 (*)

incriminate himself and is not required generally to cooperate with inspectors or investigators from government agencies, unless the statute that governs the particular activity under inspection or investigation legally requires such cooperation.

[111]Moreover, in response to the defendant’s claim that the prosecutor’s cross- examination of the defendant about his lack of cooperation with the ESA inspectors and investigators violates the defendant’s right to silence, the prosecution submits that they are entitled to adduce such evidence of a lack of cooperation with the authorities for the purposes of sentencing.

[112]In addition, besides the prosecution’s submission that they are entitled to cross- examine the defendant about his lack of cooperation with the ESA inspectors and investigators, considering that the present charges are strict liability offences, the prosecutor would have been also entitled to question the defendant on this issue for the purpose of eliciting evidence from the defendant to rebut a defence of due diligence that the defendant may subsequently raise.

[113]In respect to the issue of whether the prosecution can adduce evidence to rebut anticipated defences that the accused may raise during the prosecution’s case-in- chief, had been considered in R. v. Sanderson, [2017] O.J. No. 2986 (Ont. C.A.). Pepall J.A., writing for the Court of Appeal, recognized at paras. 36 to 45 in R. v. Sanderson, that sometimes the Crown learns of a possible defence before the close of its case, for example through questions asked during the cross- examination of prosecution witnesses, or as a result of out-of-court communications with defence counsel. As such, Pepall J.A. accepted that Crown counsel would know that certain evidence may, or even will, be required to counter the anticipated defence. However, Pepall J.A. noted that that not every suggestion put to a witness in compliance with the rule in Browne v. Dunn, or any question which foreshadows a possible attack on a witness's credibility, necessitates the Crown calling evidence on the issue in its case in chief, as such a rule would amount to chasing after every shadow. Furthermore, Pepall J.A. recognized that in such circumstances, the rule against case-splitting would not impose a general obligation on Crown counsel to lead the countering evidence as part of the prosecution case-in-chief, since Crown counsel would often be unsure whether the defence will be called, and even where they are certain on this point, would usually be unaware of its precise contours and/or the specific evidence to be presented in support. In addition, Pepall J.A. emphasized that to force the Crown to call evidence to refute an anticipated defence would thus frequently waste court time and create confusion, and may also cause unfairness by forcing the Crown to call the very evidence that it seeks to refute [emphasis is mine below]:

The Supreme Court in R. v. Chaulk, [1990] 3 S.C.R. 1303 at p. 1364, adopted the following statement from R. v. Drake (1970), 1 C.C.C. (2d) 396 (Sask. Q.B.):

There is a well-known principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be advanced by the Crown

2018 ONCJ 640 (*)

as part of its case, and such evidence cannot properly be admitted after the evidence of the defence by way of rebuttal. In other words, the law regards it as unfair for the Crown to lie in wait and to permit the accused to trap himself. The principle, however, does not apply to evidence which is only marginally, minimally or doubtfully relevant.

Bearing these principles in mind, I turn to the appellant's submissions. The appellant argues that, in compliance with the rule in Browne v. Dunn (1893), 6 R. 87 (H.L. (Eng.), amicus questioned the complainant on the confrontation between MS and the appellant and on when she told MS about the incident. He submits that the issue of MS's evidence was therefore foreshadowed by amicus' cross- examination of the complainant and the Crown was on notice to call evidence on the issue in its case in chief.

It is true that compliance with Browne v. Dunn, as a general matter, may give "notice" of potential issues that the opposing party wishes to explore. That does not mean, however, that every suggestion put to a witness in compliance with the rule in Browne v. Dunn, or any question which foreshadows a possible attack on a witness's credibility, necessitates the Crown calling evidence on the issue in its case in chief. Such a rule would amount to chasing after every shadow. This is particularly true where the witness has not accepted a suggestion advanced and where, at the end of the Crown's case, the witness has not been successfully impeached and there is no need to rehabilitate the witness: G.P., at p. 515.

Moreover, while a cross-examination may reveal part or all of an accused's defence or version of events, the relevance of a particular line of inquiry may be only marginal at this stage. As stated in McWilliams' Canadian Criminal Evidence, loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada Limited, 2017), at para. 21:50:60:

[...] Sometimes the Crown learns of a possible defence before the close of its case, for example through questions asked during the cross-examination of prosecution witnesses, or as a result of out-of-court communications with defence counsel. Crown counsel thus knows that certain evidence may, or even will, be required to counter the anticipated defence.

Nonetheless, in such circumstances the rule against case-splitting does not impose a general obligation to lead the countering evidence as part of the prosecution case in chief. This is so because Crown counsel will often be unsure whether the defence will be called, and even where certain on this point will usually be unaware of its precise contours and/or the specific evidence to be presented in support. To force the Crown to call evidence to refute an anticipated defence would thus frequently waste court time and create confusion, and may also cause unfairness by forcing the Crown to call the very evidence that it seeks to refute.

For these reasons, as concisely summarized in McWilliams at para. 21:50.30:

[T]he law is now clear: evidence marginally relevant, and thus strictly speaking admissible as part of the Crown case in chief, may nonetheless be admissible in reply where it takes on real significance only because of a position advanced during the defence case. Another way of saying the same thing, adopted in

2018 ONCJ 640 (*)

several Canadian cases, is that the matter to which the proposed reply evidence relates only became a "live issue" once the defence put in its case.

This court's decision in R. v. Campbell (1977), 17 O.R. (2d) 673 (C.A.) is frequently cited for this principle. In Campbell, Martin J.A. held that even though the accused's version of events was foreshadowed by the cross-examination of the complainant, its relevance was only marginal at that stage and arose when the accused testified. It was accordingly within the trial judge's discretion to admit reply evidence from the Crown.

In this case, in her cross-examination, the complainant did not adopt amicus' suggestion that she had told MS about the incident shortly after it occurred and that MS had confronted the appellant in the parking lot of the skating rink. There was no affirmative evidence of any confrontation and in any event, at that stage, it had little to no relevance.

Only when the appellant testified did it gain significance, not only because it contradicted the complainant's evidence that she had not told MS about the assault until much later, but because the evidence, if accepted, allowed for an inference that the complainant may have fabricated the story to make her boyfriend jealous, thus prompting a confrontation. The reply evidence became necessary to provide the trial judge with accurate facts of what happened after the assault and, from the Crown's perspective, correct the distorted picture created by the appellant's evidence that the complainant was motivated to make a false allegation and use the false story to make MS jealous, thus provoking a confrontation between MS and the appellant.

Finally, I would note that even if one concluded that MS's evidence could or should have been called in the Crown's case in chief, it cannot be said that allowing the reply evidence created an unfair advantage in favour of the Crown, nor that the appellant was caught off guard by the evidence. It was the appellant who anticipated the issue through his cross-examination of the complainant. Moreover, the Crown was not "in possession" of any evidence from MS. It is apparent from the transcript that he had not given a statement to the police and that the Crown did not anticipate MS to be a witness in the proceedings. Lastly, it bears noting that this was a judge alone trial and the risk that the late introduction of the evidence might magnify its importance beyond what was warranted is much less significant: R. v. T.K., 2013 ONCA 257 (Ont. C.A.), at para. 46; R. v. Markman, [2002] O.J. No. 4250 (Ont. C.A.), at para. 3.

In summary, when the complainant was cross-examined, the relevance of the evidence about MS was, at best, marginal. It was within the trial judge's discretion to permit MS to be called in reply in this judge alone trial. Moreover, the evidence provided the trial judge with a more complete and accurate picture of what actually happened. The appellant incurred no prejudice as a result of the trial judge's decision to allow the reply evidence. In these circumstances, it was properly within the trial judge's discretion to permit the Crown to call MS in reply. I would therefore not give effect to this submission by the appellant.

2018 ONCJ 640 (*)

[114]Furthermore, in R. v. Biddle, [1995] S.C.J. No. 22, at para. 22, Sopinka J., writing for the majority of the Supreme Court, explained that the underlying reason for the rule against splitting the case is that the accused is entitled to know the entire case of the Crown which must be met. It is only where the accused has full knowledge of the Crown's case that one is able to decide whether or not to testify [emphasis is mine below]:

It cannot be said that the opportunity to present evidence in surrebuttal removes the prejudice suffered by the appellant. As was noted by McIntyre J. in R. v. Krause, supra, and by Estey and Lamer JJ. in John v. The Queen, supra, an underlying reason for the rule against splitting the case is that the accused is entitled to know the entire case of the Crown which must be met. It is only where the accused has full knowledge of the Crown's case that one is able to decide whether or not to testify.

[115]Also, in R. v. K.T. (2013), 295 CCC (3d) 283 (Ont. C.A.), Watt J.A. held at paras. 41 to 43, that the general rule with respect to the order of proof is that the Crown must introduce all the evidence in its possession upon which it relies to prove the guilt of an accused in its case-in-chief, before the accused is required to decide whether to adduce evidence in response and to actually introduce that evidence [emphasis is mine below]:

The general rule with respect to the order of proof is that the Crown must introduce all the evidence in its possession upon which it relies to prove the guilt of an accused in its case-in-chief, before the accused is required to decide whether to adduce evidence in response, and to actually introduce that evidence: Campbell, at p. 693; R. v. Krause, 1986 * 39 (SCC), [1986] 2 S.C.R. 466, at pp. 473-474. Inherent in this requirement are principles of trial fairness and the notion of a case to meet.

The rule governing the order of proof in the context of a criminal trial prevents unfair surprise, prejudice, and confusion that could result if the Crown were allowed to split its case. Were it not for this rule, the Crown could put in part of its evidence in its case-in-chief, enough to survive a motion for a directed verdict, allow the defence to play through with its case, then add further evidence to bolster the case presented in-chief: Krause, at pp. 473-474; R. v. Biddle, 1995 * 134 (SCC), [1995] 1 S.C.R. 761, at para. 13.

But the rule about the order of proof erects no absolute bar to the introduction of further evidence by the Crown after the defence has closed. The Crown may be permitted to call evidence in reply after completion of the defence case where

i.the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or

2018 ONCJ 640 (*)

ii.some matter that emerged during the Crown’s case has taken on added significance as a result of evidence adduced in the defence case.

Krause, at pp. 473-474; R. v. Quance (2000), 2000 * 5741 (ON CA), 146

C.C.C.(3d) 153 (Ont. C.A.), at para. 21; and R. v. P. (G.) (1996), 1996 * 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at pp. 513-514.

[116]Moreover, the defendant’s three charges are strict liability regulatory offences, in which the defendant may raise the defence of due diligence once the prosecution had fulfilled its burden of proving that the defendant has committed the prohibited act or actus reus of the offence for those three charges beyond a reasonable doubt. And, as the Supreme Court held in R. v. Sault Ste. Marie, (1978), 40 C.C.C. (2d) 353, the accused alone, in a normal strict liability regulatory case, will have knowledge of what he has done to avoid the breach and that it would not be improper to expect him or her or it to come forward with the evidence of due diligence to establish the defence of reasonable care [emphasis is mine below]:

The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation. Equally, there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care.

[117]Hence, the prosecution may adduce rebuttal evidence in the prosecution’s case-in- chief which anticipates a defence that may be raised by the defendant, including rebutting a defence of due diligence.

a)There is a duty in certain circumstances for a person to produce documents and provide assistance and information to ESA inspectors

[118]The defendant contends that the prosecutor improperly elicited evidence on the defendant’s refusal to speak or cooperate with ESA Inspector Shaun Smith and with ESA Investigator Gary Corbett, since it violates the defendant’s right to silence. The prosecution, on the other hand, contends that they are entitled to elicit such evidence in the trial for the purposes of sentencing.

[119]However, unlike a trial on criminal charges, in the regulatory sphere, there is a legal requirement under certain regulatory schemes that persons involved in a particular regulated industry are obligated to provide information or documents to

2018 ONCJ 640 (*)

inspectors enforcing that specific regulatory scheme. For example, under ss. 113.13(4)(b) and (6) of the Electricity Act, 1998, an ESA Inspector conducting an inspection on any land or in any premises may require a person on the premises being inspected to produce a document, record or other thing that is relevant to the inspection, and the person who is required to produce a document, record, electrical product or device, or other thing under s. 113.13(4)(b) shall produce it and also on request of the ESA inspector to produce information that is relevant to the inspection that is in any form [emphasis is mine below]:

113.13(4) An inspector conducting an inspection on any land or in any premises, including premises of an authorization holder, may,

(a)examine all documents, records, electrical products, devices and other things that are relevant to the inspection;

(b)require a person on the premises being inspected to produce a document, record or other thing that is relevant to the inspection;

113.13(6) A person who is required to produce a document, record, electrical product or device, or other thing under clause (4)(b) shall produce it and shall, on request by the inspector, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce information or a record that is relevant to the inspection and that is in any form.

[120]To reiterate, the defendant contends that the prosecutor had improperly elicited evidence in respect to the defendant’s refusal to speak or cooperate with the ESA Inspector Shaun Smith and with ESA Investigator Gary Corbett, which the defendant submits would violate the defendant’s right to silence. However, the defendant is not facing criminal charges, but regulatory charges, and in the regulatory sphere there is a requirement under certain regulatory schemes that a person involved in a particular regulated industry is legally obligated to provide information or documents to inspectors who enforce that specific regulatory scheme, when requested to do so by an enforcement official. Therefore, by virtue of s. 113.13(6) of the Electricity Act, 1998, the defendant, if he had been involved with doing the electrical work at 22 Vespahills Cres, Brampton, would have been legally obligated upon the request of ESA Inspector Shaun Smith to provide information in any form, including by oral verbal communication, that would have been relevant to the electrical inspection of 22 Vespahills Crescent, Brampton being conducted by Smith on July 21, 2014. ESA Inspector Shaun Smith had asked the defendant for the name of the person who did the electrical work at 22 Vespahills Crescent, Brampton, after the defendant said that he did not do the electrical work. To that request by ESA Inspector Smith, the defendant did not provide the name of that person.

2018 ONCJ 640 (*)

[121]Also, the defendant had cross-examined some of the prosecution witnesses on whether they knew another prosecution witness, on whether one homeowner had hired both Paublo Medina and the defendant to do the renovation together, and on whether the ESA Investigator Gary Corbett had believed the defendant’s denial that the defendant did not do the electrical work. This line of questioning by the defendant would have suggested the possible defences that could be raised by the defendant, which would have initiated the prosecutor’s approach in adducing evidence that would rebut the defendant’s anticipated defences. Hence, this evidence about the defendant’s refusal to answer questions or to speak or cooperate with the ESA Inspector and the ESA Investigator respectively, meets the relevancy test and would be evidence that could be used by the prosecution to challenge the defendant’s credibility, to rebut a claim of collusion of prosecution witnesses, to rebut an inadequate investigation on the part of ESA Investigator

Gary Corbett, and to rebut the defendant’s defence of due diligence, or as evidence to prove a recent fabrication by the defendant of the name of the electrician that had supposedly did the electrical work, and as such, as part of the prosecution’s case-in-chief it would not have been improper or unfair to the defendant.

[122]On the other hand, if the anticipated defences are not raised by the defendant or relied on by the defendant, then in the context of a non-jury trial any potentially prejudicial effect would be minimalized or diminished, since the trier would be able to disabuse, ignore, or put no weight on that evidence of the defendant refusing to speak or cooperate with ESA inspectors or investigators. However, this evidence could still be considered by the trier for sentencing purposes, to rebut a defence of due diligence, or to prove a recent fabrication, but will not be improperly used as proof of guilt.

[123]Accordingly, in the context of a non-jury trial, the prosecution may adduce evidence in the prosecution’s case-in-chief which anticipates a defence that may be raised by the defendant.

(4)Duties And Role Of An ESA Prosecutor

[124]In R. v. Sweitlinski, [1994] 3 S.C.R. 481 (S.C.C.), at para. 16, Lamer C.J.C., writing for the majority, confirmed that the role of counsel for the Crown is not like a lawyer in civil litigation, since the functions of Crown counsel are quasi-judicial. Moreover, Lamer C.J.C. held that Crown counsel’s duty is not so much to obtain a conviction, as it is to assist the judge and the jury in ensuring that the fullest possible justice is done, such that Crown counsel’s conduct must always be characterized by moderation and impartiality. And in order for Crown counsel to properly perform their duty, Lamer C.J.C. emphasized that they must eschew any appeal to passion and employ a dignified manner suited to their function and by presenting the evidence to the jury without going beyond what it discloses [emphasis is mine below]:

2018 ONCJ 640 (*)

The appellant objected to certain irrelevant and prejudicial language used by counsel for the Crown. Before considering the disputed remarks in detail, it should be recalled that the function of counsel for the Crown in a s. 745 hearing is no different from the function in a criminal trial. Taschereau J. described his function as follows in Boucher v. The Queen, [1955] S.C.R. 16, at p. 21:

[TRANSLATION] The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi-judicial. His duty is not so much to obtain a conviction as to assist the judge and the jury in ensuring that the fullest possible justice is done. His conduct before the Court must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond all reproach if, eschewing any appeal to passion, and employing a dignified manner suited to his function, he presents the evidence to the jury without going beyond what it discloses.

[125]Furthermore, the Supreme Court of Canada in Boucher v. The Queen, [1954] S.C.J. No. 54, emphasized that the purpose of a criminal prosecution is not to obtain a conviction, but rather to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. And in order to fulfill that purpose, the Supreme Court held that the duty on Crown counsel is to ensure that all available legal proof of the facts is presented and done so in a fair manner. Furthermore, the Supreme Court held that the role of the prosecutor excludes any notion of winning or losing [emphasis is mine below]:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done so firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[126]Moreover, in R. v. Regan, [2002] 1 S.C.R. 297, at para. 66, Lebel J. writing for the majority of the Supreme Court also confirmed that the Crown prosecutor occupies what has sometimes been characterized as a quasi-judicial office, which is a unique position in our Anglo-Canadian legal tradition, and this role must remain distinct from that of the police, while still cooperative with the police [emphasis is mine below]:

The need for a separation between police and Crown functions has been reiterated in reports inquiring into miscarriages of justice which have sent innocent men to jail in Canada. The Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations (1989) ("Marshall Report") speaks of the Crown's duty this way: "In addition to being accountable to the Attorney General for the performance of their duties, Crown prosecutors are

2018 ONCJ 640 (*)

accountable to the courts and the public. In that sense, the Crown prosecutor occupies what has sometimes been characterized as a quasi-judicial office, a unique position in our Anglo-Canadian legal tradition" (pp. 227-28). The Marshall Report emphasizes that this role must remain distinct from (while still cooperative with) that of the police (at p. 232):

We recognize that cooperative and effective consultation between the police and the Crown is also essential to the proper administration of justice. But under our system, the policing function -- that of investigation and law enforcement -- is distinct from the prosecuting function. We believe the maintenance of a distinct line between these two functions is essential to the proper administration of justice.

[127]But more importantly, the ESA prosecutor is bound by the Law Society of Ontario’s

Rules of Professional Conduct. Under s. 5.1-3 of the Rules of Professional Conduct, it states that when a lawyer is acting as a prosecutor, he or she shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect. In addition, under the commentary to s. 5.1-3, it is stated that a lawyer’s prime duty when engaged as a prosecutor is not to seek to convict, but to see that justice is done through a fair trial on the merits and that they must act fairly and dispassionately [emphasis is mine below]:

Duty as Prosecutor

5.1-3 When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary

[1]When engaged as a prosecutor, the lawyer's prime duty is not to seek to convict but to see that justice is done through a fair trial on the merits. The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and known facts and witnesses, whether tending to show guilt or innocence.

(5)The Defendant Is Entitled To A Fair Trial But Not A Perfect Trial

[128]In R. v. Harrer, [1995] S.C.J. No. 81 (S.C.C.), at paras. 22 to 24, McLachlin J. (as she was then) explained that the law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair; however McLachlin J. also noted that the general principle that an accused is

2018 ONCJ 640 (*)

entitled to a fair trial cannot be entirely reduced to specific rules, and further emphasized that the right of an accused to a fair hearing is constitutionalized by s. 11(d) of the Charter, a right that would in any event be protected under s. 7, as an aspect of the principles of fundamental justice [emphasis is mine below]:

I shall, however, attempt to put more flesh on this approach because the argument was strongly advanced that since there was no breach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under s. 24(2) of the Charter, there was no Charter based jurisdiction to exclude evidence. The difficulty with this contention is that it fails to appreciate the full nature of a fair trial. As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it does not operate until there is a Charter breach. What we are concerned with here is not the remedy for a breach but with the manner in which a trial must be conducted if it is to be fair.

The law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair, but the general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules. In R. v. Corbett, [1988] 1 S.C.R. 670, a majority of this Court made it clear that a judge has a discretion to exclude evidence that would, if admitted, undermine a fair trial; see also R. v. Potvin, [1989] 1 S.C.R. 525. Similarly, Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 401, conclude that "if the admission of certain evidence would adversely affect the fairness of an accused's trial, the evidence ought to be excluded" (emphasis added). In Thomson Newspapers, supra, I attempted to explain that this approach is a necessary adjunct to a fair trial as guaranteed by s. 11(d) of the Charter in the following passage, at p. 559:

. . . there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge.

I went on to further explain, as I had in Corbett, supra, that the common law principle had now been constitutionalized by the Charter's guarantee of a fair trial under s. 11(d) of the Charter. At page 560, I continued:

The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications. The right of an accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of the principles of fundamental justice (see R. v. Corbett, per Beetz J., at p. 699, and my reasons, at pp. 744-46; Dickson C.J. does not really comment on this issue).

The effect of s. 11(d), then, is to transform this high duty of the judge at common law to a constitutional imperative. As I noted in Thomson Newspapers, at p. 563, judges must, as guardians of the Constitution, exercise this discretion where necessary to give effect to the Charter's guarantee of a fair trial. In a word, there is no need to resort to s. 24(2), or s. 24(1) for that matter. In such circumstances,

2018 ONCJ 640 (*)

the evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset.

[129]But more important, in R. v. Lyons, [1987] S.C.J. No. 62, at paras. 85 and 88, La Forest J., writing for the majority of the Supreme Court of Canada, held that s. 7 of the Charter guarantees an accused a fair hearing, but not the most favourable procedures imaginable. Moreover, La Forest J. concluded that while the requirements of fundamental justice, at a minimum, embrace the requirements of procedural fairness, these requirements vary according to the context in which they are invoked. As such, La Forest J. concluded that certain procedural protections that might be constitutionally mandated in one context may not be in another [emphasis is mine below]:

It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R.

177at pp. 212-13). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. …

It seems to me that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined.

[130]Also in R. v. Harrer, [1995] S.C.J. No. 81 (S.C.C.), at paras. 44 to 46, McLachlin J. (as she was then) explained that a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. Moreover, McLachlin J. confirmed that a fair trial must not be confused with the most advantageous trial possible from the accused's point of view as La Forest J. noted in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, nor must trial fairness be conflated with the perfect trial. In addition, McLachlin J. concluded that a fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused. With respect to how evidence could render a trial unfair McLachlin J. explained that unfairness could result first, from the way in which the evidence was taken may render it unreliable, since its potential for misleading the trier of fact may outweigh the minimal value that it might possess; and second, in the situation where the police may have acted in such an abusive fashion that the court concludes the admission of the evidence would irremediably taint the fairness of the trial itself [emphasis is mine below]:

Whether a particular piece of evidence would render a trial unfair is often a matter of some difficulty. A distinction must be made at the outset between unfairness in the way a statement was obtained and an unfair process or trial. The situation in which police take evidence is complex. Even where every effort

2018 ONCJ 640 (*)

is made to comply with the law, aspects of the process may, in hindsight, be argued to have been less than fair. Sometimes the unfairness is minor or rendered insignificant by other developments (for example, that the police would probably have obtained the evidence anyway) or by other aspects of the case (for example, that the accused waived or acquiesced in the unfairness). Sometimes the unfairness is more serious. The point is simply this: unfairness in the way evidence is taken may affect the fairness of the admission of that evidence at trial, but does not necessarily do so. This is true for Charter breaches; not every breach of the Charter creates an unfairness at trial which requires exclusion of the evidence thereby obtained: R. v. Collins, [1987] 1 S.C.R. 265, at p. 284. It must also be true for irregularities that do not constitute Charter breaches.

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

Evidence may render a trial unfair for a variety of reasons. The way in which it was taken may render it unreliable. Its potential for misleading the trier of fact may outweigh such minimal value it might possess. Again, the police may have acted in such an abusive fashion that the court concludes the admission of the evidence would irremediably taint the fairness of the trial itself. …

[131]Interestingly, in R. v. Rain, [1998] A.J. No. 1059, at paras. 36 to 44, Sulatycky J.A. writing for the Alberta Court of Appeal, held that when dealing with self- represented accused in an criminal proceeding, representation by a lawyer is not a pre-requisite for a fair trial, since there are other means which are intended to protect the right to a fair trial, with the foremost being the duty of every trial judge to ensure that all persons receive a fair trial. However, Sulatycky J.A. explained that this duty does not go as far as providing the same assistance as would be given by counsel. Moreover, Sulatycky J.A. noted that the scope of the assistance a trial judge can give to an accused is limited to what is reasonable and does not extend at each stage of the trial to provision of the kind of advice that counsel could be expected to provide if the accused were represented by counsel [emphasis is mine below]:

Representation by a lawyer is not a pre-requisite for a fair trial. A person is entitled to represent himself or herself and when he or she does so,.

The Criminal Code recognizes the accused's right to self-representation at trial, for example, in subsections 651(2), (3) and (4) which sets out the accused's right to reply to the summing up by the prosecutor where the accused is not defended by counsel. Thus, an accused cannot be compelled to have counsel if he or she

2018 ONCJ 640 (*)

is unwilling: Vescio v. The King [1949] S.C.R. 139 (S.C.C.), cited in Robinson, supra and elsewhere.

Whether an accused is represented by counsel or not the basic duty of a trial judge is to ensure that he or she receives a fair trial. It is true that the duty of a trial judge to preserve the accused's right to a fair trial does not go as far as providing the same assistance as would be given by counsel. The Quebec Court of Appeal has agreed with the Ontario Court of Appeal that the scope of the assistance a trial judge can give to an accused is limited to what is reasonable and cannot and does not extend at each stage of the trial to provision of the kind of advice that counsel could be expected to provide if the accused were represented by counsel: R. v. Taubler (1987), 20 O.A.C. 64 as quoted in R. v. Sechon (1995), 104 C.C.C. (3d) 554 (Que. C.A.) at 559.

The Ontario Court of Appeal in R. v. McGibbon (1988), 45 C.C.C. (3d) 334 at p. 347 described the duty of the trial judge when an accused is unrepresented by counsel as including the provision of reasonable assistance to the accused in the presentation of evidence and in putting any defences before the court and to guide the accused in such a way that his or her defence is brought out with its full force and effect.

Undoubtedly the trial judge's burden of assuring a fair trial appears heavier when an accused is unrepresented. But the nature of the duty imposed on the trial judge is not changed merely because an accused is represented by counsel. Judges who cede any aspect of that duty to counsel may be found in error. For example where the accused is represented by counsel who does not object to the admission of inadmissible evidence, it is still the duty of the trial judge to exclude it in order to ensure a fair trial: R. v. D.(L.E.) (1989), 50 C.C.C. (3d) 142 at 161 (S.C.C.) as quoted in R. v. Lafontaine and Lafontaine, [1998] A.Q. no. 1285 (Q.L.) (Que. S.C.).

Even though a criminal trial is an adversarial process and the judge is the adjudicator, the judge has ample latitude to participate in the examination of witnesses when necessary to ensure fairness. That applies whether the accused has counsel or not. In R. v. Valley (1986), 26 C.C.C. 207 (Ont. C.A.),(in which case accused had counsel at trial) at page 230 Martin J.A. described this aspect of the judge's role as follows:

The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted.... Further, I do not

doubt that the judge has a duty to intervene to clear the innocent.

The trial judge is not the lone guardian of the right to a fair trial. That right can be protected retrospectively as well. As suggested in Robinson, supra, upon appeal, a court is in the position to determine if the conduct of the trial without counsel breached the accused's right to a fair trial. For examples of appellate scrutiny of the fairness of a trial without counsel see R. v. Hardy, (1991) 7 C.R.R. (2d) 382 (Alta. C.A.) and R. v. Jones (1994), 154 A.R. 118 (Q.B.).

2018 ONCJ 640 (*)

In Jones, supra Veit J. ordered a new trial because the trial judge failed to provide the unrepresented accused with basic information about the trial process. Certainly the type of information which was not provided would have been furnished by counsel if one had been available to the accused. But it was not the absence of counsel which caused the unfairness, rather, it was the failure of the trial judge to ensure trial fairness by properly providing information to the accused.

In most cases where representation by counsel is necessary for a fair trial, an indigent accused will receive assistance through the legal aid program. When legal aid is denied and exceptional circumstances make it probable that the trial judge cannot discharge the duty to ensure a fair trial then the appointment of counsel becomes necessary. What sort of cases are exceptional was discussed in Rowbotham.

(6)Duty Of A Trial Judge When Dealing With An Unrepresented Accused

[132]The supposed misconduct by the ESA prosecutor is claimed to have occurred during the parts of the trial when the defendant had been self-represented. When an accused is self-represented at a trial, the trial judge has a duty to ensure that the accused receives a fair trial: R. v. Harrer, [1995] S.C.J. No. 81 (S.C.C.), at paras. 22 to 24.

[133]Furthermore, in R. v. McGibbon, [1988] O.J. No. 1936, Griffiths J.A. for the Ontario Court of Appeal, explained that a trial judge has a duty when an accused is unrepresented by counsel to provide reasonable assistance to the accused in the presentation of evidence and in putting any defences before the court and to guide the accused in such a way that his or her defence is brought out with its full force and effect. However, Griffiths J.A. emphasized that the judge is not required to become the advocate for the accused [emphasis is mine below]:

Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.

It is not suggested in this case that the appellant was not fit to stand trial. It is apparent, however, that he did not conduct his defence with the competence of legal counsel and that some of his theories and notions, particularly those expressed in his opening statement, bordered on the bizarre. On the other hand, in his cross-examination of the complainant, the appellant posed helpful and rational questions which were relevant to and which promoted his theory of defence.

2018 ONCJ 640 (*)

As I read the record, it is apparent that the trial judge took great pains to assist the appellant. In particular:

1.he directed the Crown attorney to have witnesses subpoenaed for the appellant;

2.he allowed the appellant to make an opening statement out of turn;

3.he pointed out to the appellant the effect of an admission that identification was not in issue and made sure that the appellant understood what he was doing in making such an admission;

4.he explained to the appellant how to make use of the preliminary inquiry transcript in cross-examining the complainant;

5.when the appellant insisted on putting his criminal record before the court and putting his character in issue, the judge repeatedly warned him that its use was limited and its relevance was questionable;

6.the judge told the appellant that his allegations of unrelated police misconduct were not relevant and were not helpful to his cause;

7.at the end of the appellant's evidence-in-chief, the judge took a recess to give the appellant the opportunity to decide whether he wanted to say any more;

8.at the end of the appellant's cross-examination, the judge gave the appellant an opportunity to give further evidence by way of re-examination and explained to him the difference between re-examination and argument;

9.realizing that the appellant and his common-law wife, Ruth Parent, were not on good terms the judge explained to the appellant that he was not obliged to call Ruth Parent and called a recess to give the appellant the chance to interview her;

10.when the appellant challenged the accuracy of the preliminary inquiry transcript, the judge ordered the Crown to call the court reporter who, in fact, established that there was an omission from the transcript;

11.when the appellant brought out allegations that he had sexually molested his own children (allegations that were later abandoned), the judge warned him he was not advancing his case.

Counsel for the appellant submits that the trial judge erred in failing to identify and bring out on the record certain discrepancies between the testimony of the complainant at trial and her testimony at the preliminary inquiry. …

It would have been appropriate to have the above discrepancies drawn to the attention of the complainant in the course of her cross-examination at trial. It seems to me, however, to place far too heavy a burden on the trial judge, where the accused is unrepresented, to expect the trial judge to review the transcript of evidence and to pick out discrepancies in the evidence from that given at trial. A judge is not required to become the advocate for the accused. Moreover, there may be matters contained in the transcript of the preliminary inquiry that the trial judge should not be made aware of.

[134]Also, in Brouillard v. The Queen (1985), 17 C.C.C. (3d) 193 (S.C.C.), at p. 196, Lamer J. recognized that judges are no longer required to be as passive as they

2018 ONCJ 640 (*)

once were and that a judge may intervene in the adversarial debate when it is necessary for justice to be done, but that judge’s object above all is to find out the truth and to do justice according to law [emphasis is mine below]:

... [J]udges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. In support of this contention, Lamer J. cites Lord Denning's statement in Jones v. National Coal Board, [1957] 2 All E.R. 155 at 158-59: "... a judge is not a mere umpire ... His object above all is to find out the truth, and to do justice according to law."

[135]Moreover, in R. v. Tossounian, [2017] O.J. No. 3842, at paras. 36 to 38, the Court of Appeal adopted the Statement of Principles on Self-represented Litigants and Accused Persons issued by the Canadian Judicial Council in September 2006, which offers specific advice to judges on how to meet their duties to self- represented persons in the courtroom environment. The Statement of Principles states that judges, depending on the circumstances and nature of the case, may explain the relevant law in the case and its implications; that before the self- represented person makes critical choices, judges should consider providing self- represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court in appropriate circumstances; and that judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons [emphasis is mine below]:

This court described the duty of a trial judge when dealing with an unrepresented accused in R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347, as follows:

Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect.

The responsibilities of judges in respect of unrepresented accused persons are also described in the Statement of Principles on Self-represented Litigants and Accused Persons (the "Statement") issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsed the Statement in Pintea v. Johns, 2017 SCC 23, at para. 4, as did this court in Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, at paras. 42-45.

The Statement, at p. 7, offers specific advice to judges about how to meet their duties to self-represented persons in the courtroom environment:

Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges

2018 ONCJ 640 (*)

may explain the relevant law in the case and its implications, before the self- represented person makes critical choices.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

(a)The amount of assistance provided by the trial judge to a self-represented accused is at the discretion of the trial judge

[136]In R. v. Tran, [2001] O.J. No. 3056 (Ont. C.A.), at para. 31, Borins J.A., speaking for the Court of Appeal for Ontario, noted that the amount of assistance that a trial judge should provide an unrepresented accused is a matter for his or her discretion. In addition, Borins J.A. explained that a trial judge is not required, in offering assistance to an unrepresented accused, to become the accused's advocate, but that the trial judge has to provide a minimum level of assistance in order to ensure that the accused obtains a fair trial [emphasis is mine below]:

Although the amount of assistance which a trial judge should provide an unrepresented defendant is a matter for his or her discretion, and although a trial judge is not required to become the defendant's advocate, there is a minimum level of assistance that is required in order to ensure that the defendant obtains a fair trial. …

[137]Also, to ensure that a self-represented individual has a fair trial, the British Columbia Court of Appeal in R. v. Moghaddam, [2006] B.C.J. No. 567, at paras. 35 and 36, held that a trial judge is required to assist within reason the self- represented individual in the conduct of the trial process to ensure that the accused’s defence is effectively brought out, but how far a trial judge should go in doing so is necessarily a matter of discretion [emphasis is mine below]:

The issues considered by the summary conviction appeal judge (set out in para. 4 above) focused on whether the trial judge had assisted the appellant in the procedural aspects of the trial. She commenced her judgment by citing R. v. B.K.S., [1998] B.C.J. No. 507 (C.A.) and R. v. Par-ton, [1994] B.C.J. No. 2098 (S.C.) for the principles that govern the duty of a trial judge in assisting an unrepresented accused to ensure a fair trial and for the types of assistance a trial judge should offer. In B.K.S., Cumming J.A. for the Court stated (at para. 26):

A trial judge has an obligation to ensure that an accused receives a fair trial. When faced with an unrepresented accused the trial judge should, within reason, assist the accused in the conduct of his defence and guide him through the trial process so that his defence is effectively brought out. Just how far a trial judge should go in doing so is necessarily a matter of discretion. As in all cases

2018 ONCJ 640 (*)

involving the review of the exercise of judicial discretion, an appellate court should only intervene if the judge proceeded on a wrong principle or if a miscarriage of justice resulted. See R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.) and R. v. Carosella, [1997] 1 S.C.R. 80, 112 C.C.C. (3d) 289.

[Underlining added.]

In Parton, Ryan J. (as she then was) summarized the principles (at para. 16):

... the case law appears to require the trial judge to provide assistance to an un- represented accused with respect to the applicable procedural law in each case. The trial judge must, in addition, try to ensure that the accused's defence is brought out in full force and effect.

[Underlining added.]

[138]Moreover, in R. v. Gendreau, [2011] A.J. No. 991 (Alta. C.A.), at paras. 27 and 28, the Alberta Court of Appeal held that individuals who represent themselves are entitled to a fair trial, but that they are not entitled to the kind of legal advice or strategy advice from the trial judge that would be expected of counsel [emphasis is mine below]:

The appellant submits that because of a lack of guidance from the trial judge, he did not know that, after the 911 recording was admitted into evidence, he could recall the complainant for the purpose of cross-examining her on alleged inconsistencies between that call and her testimony at trial. He says that this lack of guidance amounted to unfairness in the trial.

We disagree. First, individuals who choose to represent themselves are entitled to a fair trial; they are not entitled to the kind of legal advice or strategy from the trial judge that would be expected of counsel. Second, even if the trial judge could be said to have failed in providing sufficient guidance to the appellant in this case, no unfairness arose as a result. While the timing of the ruling on the voir dire may not have been ideal, there was no harm done. The ruling as to the admissibility of the 911 recording was correct in law, and the jury could not have been misled as to the use they could make of the recording, having been given proper instructions on its limited use both during the trial and in the later charge.

(b)How Can Trial Judge Deal With Misconduct Of Legal Counsel In A Trial?

[139]Recently, in Groia v. Law Society of Upper Canada, [2018] S.C.J. No. 27, the majority of the Supreme Court indicated, at paras. 64 to 76, that counsel incivility, such as overly aggressive, sarcastic, or demeaning courtroom language may prejudice a client’s cause and lead to triers of fact, be they judge or jury, to view the lawyer, and therefore the client’s case, unfavourably. In addition, the majority of the Supreme Court indicated that uncivil behaviour distracts the triers of fact by diverting their attention away from the substantive merits of the case, while the trial

2018 ONCJ 640 (*)

judge risks becoming preoccupied with policing counsel’s conduct instead of focusing on the evidence and legal issues. Furthermore, the majority recognized that personal attacks directed at a witness may exacerbate the already stressful task of testifying at trial and that inappropriate vitriol, sarcasm and baseless allegations of impropriety in a courtroom can cause the parties, and the public at large, to question the reliability of the result. On the other hand, the majority held that even if there is uncivil behaviour worthy of sanction, it may not have a perceptible impact on the fairness of the particular proceeding [emphasis is mine below]:

First, incivility can prejudice a client’s cause. Overly aggressive, sarcastic, or demeaning courtroom language may lead triers of fact, be they judge or jury, to view the lawyer — and therefore the client’s case — unfavourably. Uncivil communications with opposing counsel can cause a breakdown in the relationship, eliminating any prospect of settlement and increasing the client’s legal costs by forcing unnecessary court proceedings to adjudicate disputes that could have been resolved with a simple phone call. As one American commentator aptly wrote:

Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice . . . . This mindset eliminates peaceable dealings and often forces dilatory, inconsiderate tactics that detract from just resolution.

(K.A. Nagorney, “A Noble Profession? A Discussion of Civility Among Lawyers” (1999), 12 Geo. J. Legal Ethics 815, at p. 817)

Second, incivility is distracting. A lawyer forced to defend against constant allegations of impropriety will naturally be less focused on arguing the case. Uncivil behaviour also distracts the triers of fact by diverting their attention away from the substantive merits of the case. The trial judge risks becoming preoccupied with policing counsel’s conduct instead of focusing on the evidence and legal issues: Justice Michael Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can. Crim. L.R. 97, at p. 105.

Third, incivility adversely impacts other justice system participants. Disparaging personal attacks from lawyers — whether or not they are directed at a witness — can exacerbate the already stressful task of testifying at trial.

Finally, incivility can erode public confidence in the administration of justice — a vital component of an effective justice system: Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689. Inappropriate vitriol, sarcasm and baseless allegations of impropriety in a courtroom can cause the parties, and the public at large, to question the reliability of the result: see Felderhof ONCA, at para. 83; Marchand (Litigation guardian) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, at para. 148. Incivility thus diminishes the public’s perception of the justice system as a fair dispute-resolution and truth-seeking mechanism.

2018 ONCJ 640 (*)

The Appeal Panel was alive to the profound importance of civility in the legal profession when developing its approach. It recognized that “‘civility’ protects and enhances the administration of justice” (para. 211), targeting behaviour that could call into question trial fairness and the public’s perception of the administration of justice (paras. 228 and 230-31).

Mr. Groia and various interveners argue that the Appeal Panel should have gone further. Like the Divisional Court, they would require that before a lawyer can be found guilty of professional misconduct, the lawyer’s behaviour must bring the administration of justice into disrepute or impact trial fairness. With respect, I would not give effect to their arguments. I echo the comments of Cronk J.A. that such a requirement is “unnecessary and unduly restrictive”: para. 169. The Appeal Panel’s approach targets conduct that tends to compromise trial fairness and bring the administration of justice into disrepute, making an explicit requirement unnecessary. Moreover, uncivil behaviour worthy of sanction may not have a perceptible impact on the fairness of the particular proceeding. …

[140]In addition, in R. v. Anderson, [2014] S.C.J. No. 41, at paras. 57 to 61, Moldaver J., writing for the Supreme Court, reiterated that statutory courts have implicit powers that derive from the court's authority to control its own process and that this jurisdiction includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross- examination, improper opening or closing addresses or inappropriate attire. Such sanctions, Moldaver J. states, include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings. In addition, Moldaver J. noted that while deference is not owed to counsel who are behaving inappropriately in the court-room, our adversarial system does accord a high degree of deference to the tactical decisions of counsel, and emphasized that while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself [emphasis is mine below]:

The second category in the framework for review of Crown activity was referred to in Krieger as "tactics or conduct before the court": para. 47. As stated in Krieger, "such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum" (para. 47).

Superior courts possess inherent jurisdiction to ensure that the machinery of the court functions in an orderly and effective manner: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 26. Similarly, in order to function as courts of law, statutory courts have implicit powers that derive from the court's authority to control its own process: Cunningham, at para.18. This jurisdiction includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross- examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings.

2018 ONCJ 640 (*)

While deference is not owed to counsel who are behaving inappropriately in the court-room, our adversarial system does accord a high degree of deference to the tactical decisions of counsel. In other words, while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself. In R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 36-37, this Court explained why judges should be very cautious before interfering with tactical decisions:

In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel ... . [C]ounsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party... .

The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess the tactical decisions of counsel. Of course, trial judges are still required to "make sure that [the trial] remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice": Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 68.

[page195]

Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused: Jolivet, at para. 21. Like-wise, as this Court recently held in R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, a judge may exceptionally override a Crown tactical decision in order to prevent a Charter violation.

Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion.

(c)The application of evidence rules in a trial

[141]Many of circumstances of the prosecutor’s conduct for which the defendant contends had amounted to an abuse of process are based on the application of evidence rules and the admissibility of evidence in the defendant’s trial. In a non- jury trial such as in the present case, the trier has much more discretion in allowing in evidence, even though it may initially appear to be irrelevant, hearsay, opinion, or character evidence, as long as the probative value of the evidence outweighs its prejudicial effect, since until the entire case is presented by the prosecution or all the evidence is in, the relevance, materiality, and weight of such evidence will not come clear until later when such evidence may have to be used in determining whether the prosecution has proven all the elements of the offence beyond a reasonable doubt. And, because this is a non-jury trial the trier would be cognizant of applying the relevant legal principles and law in the use or admissibility of

2018 ONCJ 640 (*)

irrelevant prejudicial evidence and that the trier would be able to disabuse or attach no weight to the evidence that turns out to be irrelevant, hearsay, opinion, or bad character evidence, and to also not improperly use such evidence as proof of guilt, which would, therefore, lessen any concerns by the defendant of any potential prejudicial effect from that impugned evidence.

[142]In regards to applying evidence rules in a trial, the majority of the Supreme Court in R. v. Seaboyer, [1991] 2 S.C.R. 577, at paras. 63 to 69, has emphasized that the courts of late have taken a more flexible approach on the rules of evidence, which reflects a keen sensibility to the need to receive evidence which has real probative force in the absence of overriding countervailing considerations. The majority also explained that the exclusionary rules of evidence are based on the justification that the evidence excluded is likely to do more harm than good to the trial process. In addition, the majority emphasized that these rules, as they have developed in recent years, admit of a great deal of flexibility, allowing considerable discretion to the trial judge to admit evidence in cases where the value of the evidence outweighs its potential prejudice. Moreover, the majority recognized that some of the rules of evidence had been unfairly restricting the right to bring relevant and helpful evidence before the court, thereby undermining the ability of the court to find the truth and do justice. In addition, the majority also indicated that the law relating to opinion evidence stops far short of absolute exclusion and that character evidence may be received on a criminal trial where its relevance outweighs its prejudice [emphasis is mine below]:

The rules against hearsay, opinion, and character evidence, as well as the rules of privilege, undeniably limit the right to call evidence. The presence of such rules, it is argued, suggests that rules categorically prohibiting evidence that may be relevant to the defence are not contrary to the principles of fundamental justice nor to our notions of what constitutes a fair trial.

This argument rests on the assumption that rules of evidence commonly exclude evidence relevant to the defence, the value of which is not substantially outweighed by its prejudice. A closer examination of the rules, however, casts doubt on this proposition. In fact, the exclusionary rules of evidence are based on the justification that the evidence excluded is likely to do more harm than good to the trial process. Moreover, these rules, as they have developed in recent years, admit of a great deal of flexibility, allowing considerable discretion to the trial judge to admit evidence in cases where the value of the evidence outweighs its potential prejudice.

Consider the hearsay rule. At one time it was seen as an absolute prohibition subject to a number of limited, rigidly defined exceptions. In this respect, it resembled s. 276 of the Criminal Code. But in more recent times, this inflexible approach has been replaced by an approach which allows more discretion to the trial judge. Thus this Court in Ares v. Venner, [1970] S.C.R. 608, held that old categories are no longer exclusive and that hearsay evidence which does not fall within one of the traditional exceptions may be received if it is (a) necessary, and

(b)reliable. This approach was recently affirmed by this Court in R. v. Khan, [1990] 2 S.C.R. 531. The reason for the change was simple. The judges

2018 ONCJ 640 (*)

perceived that the rules of evidence were unfairly restricting the right to bring relevant and helpful evidence before the court, thereby undermining the ability of the court to find the truth and do justice. So the courts broadened the rule to conform to their sense of justice by permitting judges convinced of the reliability and trustworthiness of the evidence to admit it despite its failure to conform to the traditional exceptions to the hearsay rule.

The same is true of privilege. Courts have held that informer and solicitor and client privilege do not apply where the effect would be to prevent the defendant on a criminal charge from bringing forward relevant evidence: Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), supra; R. v. Dunbar and Logan, supra.

The law relating to opinion evidence similarly stops far short of absolute exclusion. The opinion evidence rule is less a rule of exclusion than a means of setting certain conditions for the reception of evidence which might otherwise be unreliable -- evidence which, moreover, is usually collateral to the issues of fact involved in the case and which may arguably infringe on the role of the trier of fact of drawing inferences from the facts as found. Provided the witness can be shown to be qualified to give the opinion and provided the opinion is relevant and does not trench unduly on the judge's or jury's ultimate task, it may be received. Again, in practice considerable discretion rests with the trial judge in weighing the proper considerations in the particular case.

Similarly, character evidence may be received on a criminal trial where its relevance outweighs its prejudice. The effect of s. 276 may be to exclude such evidence. Consider evidence as to the conduct of the accused on other occasions, sometimes called evidence of similar acts. The law has abandoned the former category approach to similar fact evidence and now permits evidence of similar prior acts, notwithstanding the inference of disposition or character which may be drawn from them, provided their relevance to a specific feature of the case outweighs their prejudicial value. The determination is made by the trial judge on the facts of the particular case. Section 276, on the other hand, excludes evidence of similar sexual acts categorically, without any consideration of the probative value of the evidence in relation to its potential for prejudice.

The common law rules of evidence may not be perfect. Certainly, the rules relating to evidence of sexual conduct which s. 276 abolished often operated unfairly. At the same time, the more flexible approach which the courts of late have taken in decisions on the rules of evidence reflects a keen sensibility to the need to receive evidence which has real probative force in the absence of overriding countervailing considerations. The problem with s. 276 is that it may operate to exclude relevant evidence where there are no countervailing considerations capable of outweighing the value of the evidence.

[143]Furthermore, in Paciocco and Steusser’s textbook, The Law of Evidence, 6ed.

(Toronto, Ontario: Irwin Law Inc., 2011), at pp. 2 to 4, Paciocco and Steusser explain that the application of various rules of admissibility of evidence should ideally be generous and that the law of evidence should ideally enable triers of fact

2018 ONCJ 640 (*)

to have orderly access to any information that could help them make an accurate determination about whether the substantive law applies. One such rule of admissibility is referred to by Paciocco and Steusser as “rules of restricted admissibility”, which require triers of fact to avoid using restricted evidence for improper purposes in their decisions, but would allow the information to be considered for only limited purposes even where logically that information may have a range of possible uses. Moreover, Paciocco and Steusser have identified that the hearsay rule is an example of a rule of restricted admissibility. In addition, Paciocco and Steusser have coined three categories for rules of evidence that assist in understanding why the law of evidence excludes evidence or restricts admissibility, which are “rules of practical exclusion”, “rules of subordinated evidence”, and “rules of non-evidence”. Furthermore, they explain that “rules of practical exclusion” reject evidence in order to encourage trial efficiency; that “rules of subordinated evidence” exclude data from consideration because of competing considerations of policy or principle; and that “rules of non-evidence”, such as irrelevant evidence, exclude information that will not help the trier of fact [emphasis is mine below]:

Where the law of evidence plays its most controversial role is in determining “admissibility” — in identifying what information triers of fact are allowed to consider. Ideally, the rules of admissibility should be generous. Given its role in serving the application of the substantive law, the law of evidence should ideally enable triers of fact to have orderly access to any information that could help them make an accurate determination about whether the substantive law applies.

This basic “principle of access to evidence” is well recognized. In R. v. Jarvis the Supreme Court of Canada elevated it to a constitutional level in criminal cases, referring to the “principle of fundamental justice that relevant evidence should be available to the [trier of fact] in the search for the truth.” This principle is not, however, pursued single-mindedly. The rules of evidence frequently impede access to information. For example, the rule of solicitor-client privilege prevents lawyers from testifying about what their clients have said, even though solicitor- client conversations may produce the most frank and complete account of the client’s information. The law of evidence has judged that a competing policy — protecting the confidentiality of solicitor-client communications so that clients can be candid and secure proper legal advice relevant to their actual situation — is generally more important than the principle of access to evidence. Many rules of evidence “exclude” information from consideration entirely, in this way.

Other rules of evidence — rules of “restricted admissibility” — allow information to be considered but purport to impose limits on the use that can be made of that information even where logically that information may have a range of possible uses. This is achieved by requiring triers of fact to avoid using restricted evidence for improper purposes in their decisions. If they do, they will have erred in law. In jury trials where evidence has been admitted for restricted purposes the judge must provide “limiting instructions regarding the permissible inferences that may be drawn from the evidence.” The hearsay rule is an example of a rule of restricted admissibility.

2018 ONCJ 640 (*)

It does not prohibit the admissibility of everything that has been said prior to court. It simply holds that ordinarily courts must not treat what has been said out of court as though it is the equivalent of in-court testimony. In other words, courts should not use out-of-court statements as a narrative account of what happened

as proof of the truth of its contents. On the other hand, if those out-of-court statements are relevant for other purposes they can be admitted and used for those limited purposes. For example, it is permissible to use an out-of-court statement made by a testifying witness to show that, in their current testimony, the witness has now changed their story from what they said before. The prior statement can be used to prove the contradiction, but not as proof of the facts it asserts. Most exclusionary rules work this way. They do not bar a particular kind of information. Instead, they restrict the uses to which information can be put when it is admitted.

We find it helpful in instructing students of the law of evidence to suggest that there are three categories that can assist in understanding why the law of evidence excludes evidence or restricts admissibility — “rules of practical exclusion,” “rules of subordinated evidence,” and “rules of non-evidence.”

Rules of practical exclusion reject evidence in order to encourage trial efficiency. There are rules, for example, limiting the number of expert witnesses that can be called, absent special permission to call more.

Rules of subordinated evidence exclude data from consideration because of competing considerations of policy or principle. Solicitor-client privilege, introduced above in this chapter, is an example. Another example is the rule that excludes some unconstitutionally obtained evidence.

Rules of non-evidence exclude information that will not help the trier of fact — information that is not really evidence at all, hence the name “non-evidence.” Irrelevant information is an obvious example of non-evidence. Other rules of non- evidence are more subtle. They exclude information that seems helpful on its face but which may in fact be unhelpful because it can distort the truth. The hearsay rule, introduced above, is an example. Experience shows that we typically know too little to judge rationally the accuracy of a speaker’s information if the speaker is not present in court to answer questions about their honesty, their opportunity to observe, their memory, or what precisely they meant to communicate. A hearsay statement that may seem tremendously useful on its face will be dangerous to act upon without more information from the person who made that hearsay statement. The interesting thing about rules of non-evidence is that, despite the common impression that the rules of evidence tend to exclude useful information, these rules of exclusion are meant to improve the accuracy of fact-finding.

These three categories of exclusionary rule are not, of course, airtight. The objectives achieved by many rules fall into more than one of these categories. The exclusion of irrelevant evidence, for example, occurs not only because it is “non-evidence,” but also because excluding irrelevant evidence serves the needs of practical exclusion by making trials more efficient. Even though the three categories of exclusion are imperfect, they are useful in answering the most

2018 ONCJ 640 (*)

important question in understanding the rules of exclusion — “why.” If lawyers do not understand why a rule of exclusion exists they will not use it properly.

[144]But more significant, in Paciocco and Steusser’s textbook, The Law of Evidence,

6ed. (Toronto, Ontario: Irwin Law Inc., 2011), at pp. 29 and 30, Paciocco and Steusser noted that in considering whether specific evidence is relevant requires evaluating the evidence in context, which would depend on the facts in issue, the position taken by the parties in respect of those facts, and the other evidence adduced in relation to those facts. Moreover, Paciocco and Steusser emphasized that the actual relevance of the evidence may become apparent only when other evidence is adduced, and even then it may depend on a chain of inferences. On the other hand, Paciocco and Steusser indicated that even apparently relevant evidence may prove to be irrelevant when taken in context. In addition, Paciocco and Steusser pointed out that relevance concepts also apply to lines of reasoning, meaning that it would be inappropriate for judges to rely on an accused’s motivation to gain an acquittal as a reason to disbelieve their evidence. However, Paciocco and Steusser also noted that there are cases where the potential motive of the accused to lie in order to secure an acquittal can become relevant, such as when an accused defends himself by pointing to the motivation of Crown witnesses to lie to avoid their own guilt [emphasis is mine below]:

Relevance is contextual in that it depends on the facts in issue, the position taken by the parties in respect of those facts, and the other evidence adduced in relation to those facts.” For example, in Monteleone v. R., the Crown wanted to prove that the accused, charged with arson, told police that he had placed a hot vacuum cleaner in the basement of his premises near some boxes. This evidence alone does not have any tendency to prove that he caused the fire intentionally, since it suggests that the fire was accidental. Other evidence, however, proved that the vacuum cleaner had not overheated. Together, these two items of evidence gave rise to the inference that the accused fabricated an innocent account of how the fire started, perhaps to conceal the fact that the fire had been started intentionally. Relevance may become apparent only when other evidence is adduced, and even then it may depend on a chain of inferences.

Similarly, apparently relevant evidence may prove to be irrelevant when taken in context. In R. v. Ferris the accused, charged with murder, was overheard to say “I killed David.” David was the victim. In isolation, this statement appears to be fine evidence for the Crown. In fact, a police officer heard the accused say something inaudible, then “I killed David,” and then something else inaudible. He may have said, “They think I killed David but I did not.” In context, the utterance was simply irrelevant as it could assist in establishing nothing. It follows that if the desired inference is “speculative or unreasonable” or too equivocal the evidence is irrelevant. In R. v. Arcangioli the accused and a number of men attacked the victim, who was stabbed. Arcangioli, who was charged with aggravated assault by stabbing, admitted to punching the victim but denied stabbing him. The Crown wished to rely on evidence that Arcangioli ran from the scene to prove he was the stabber.

2018 ONCJ 640 (*)

There are cases where flight from the scene of a crime can support the inference that the accused was attempting to escape after committing the crime charged, but here Arcangioli’s flight was irrelevant in showing what he did. Arcangioli may have fled because he had committed an assault on the victim by punching him. A trier of fact could only act arbitrarily if it chose to believe that he fled because he had stabbed the victim; hence, the evidence was irrelevant on the issue for which it was offered.

Relevance concepts also apply to lines of reasoning. For example, for the same reason the flight evidence is generally impermissible, it is ordinarily inappropriate for judges to rely on the motivation of accused persons to gain acquittal as a reason to disbelieve their evidence. The motive to gain acquittal is shared equally by the guilty and innocent. There are cases, however, where the potential motive of the accused to lie to secure an acquittal can become relevant. In R. v. Laboucan the accused defended himself by pointing to the motivation of Crown witnesses to lie to avoid their own guilt, and he was being tried with a co-accused person who wanted to defend himself by showing why Laboucan should not be believed.

(i)The prosecution’s blanket objection to the defendant’s hearsay testimony and to the defendant’s testimony that offends the Rule in Browne and Dunn

[145]The defendant in presenting his case-in-chief gave rambling, incoherent, and confusing testimony, which for the most part was based on hearsay, conjecture, and self-serving statements. As a result, the prosecution had objected to the admissibility of the defendant’s statements in his testimony that supposedly were made by prosecution witnesses or other people out of court for its truth and also to the defendant’s testimony which had implied that prosecution witnesses had given contradictory evidence that would have violated the Rule in Browne and Dunn.

The concern with the defendant’s testimony which violated the Rule in Browne and Dunn was that the defendant did not put the supposed contradictory evidence or out-of-court statements made by the prosecution witnesses to the prosecution witnesses when they were still in the witness stand.

[146]And, because of the way the defendant’s testimony had been coming out and the prejudicial effect that it could have on the prosecution’s case, the prosecution brought a blanket objection to all of the defendant’s testimony that did not comport with the rules of evidence, especially in respect to hearsay evidence and evidence that would have contravened the Rule in Browne and Dunn. However, because the defendant had been unrepresented and to also not curtail the defendant’s ability to make full answer and defence and to ensure that all potential defences could be brought out or raised by the defendant, the defendant was given considerable leeway in in providing his testimony and in trying to establish his defences and in presenting his narrative. In addition, the defendant was informed that his evidence based on hearsay would only go to constructing the defendant’s narrative, but not for their truth.

2018 ONCJ 640 (*)

[147]But more importantly, in weighing whether defence evidence that may not generally be admissible under the rules of evidence, the majority of the Supreme Court in R. v. Seaboyer, [1991] 2 S.C.R. 577, at paras. 41 to 44, has emphasized that Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, which reluctance had been founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. In addition, the majority noted that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. Moreover, the majority noted that the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence. In most cases, the majority emphasized that the exclusion of relevant evidence can be justified on the ground that the potential prejudice to the trial process of admitting the evidence clearly outweighs its value [emphasis is mine below]:

This Court has affirmed the trial judges' power to exclude Crown evidence the prejudicial effect of which outweighs its probative value in a criminal case, but a narrower formula than that articulated by McCormick has emerged. In Wray, supra, at p. 293, the Court stated that the judge may exclude only "evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling". More recently, in Sweitzer v. The Queen, [1982] 1 S.C.R. 949, at p. 953, an appeal involving a particularly difficult brand of circumstantial evidence offered by the Crown, the Court said that "admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission". In Morris, supra, at p. 193, the Court without mentioning Sweitzer cited the narrower Wray formula. But in R. v. Potvin, [1989] 1 S.C.R. 525, La Forest J. (Dickson C.J. concurring) affirmed in general terms "the rule [page611] that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value" (p. 531).

I am of the view that the more appropriate description of the general power of a judge to exclude relevant evidence on the ground of prejudice is that articulated in Sweitzer and generally accepted throughout the common law world. It may be noted that the English case from which the Wray formula was adopted has been superseded by more expansive formulae substantially in the language of Sweitzer.

The Canadian cases cited above all pertain to evidence tendered by the Crown against the accused. The question arises whether the same power to exclude exists with respect to defence evidence. Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must

2018 ONCJ 640 (*)

substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

These principles and procedures are familiar to all who practise in our criminal courts. They are common sense rules based on basic notions of fairness, and as such properly lie at the heart of our trial process. In short, they form part of the principles of fundamental justice enshrined in s. 7 of the Charter. They may be circumscribed in some cases by other rules of evidence, but as will be discussed in more detail below, the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence. In most cases, the exclusion of relevant evidence can be justified on the ground that the potential prejudice to the trial process of admitting the evidence clearly outweighs its value.

[148]Furthermore, in R. v. Albright, [1987] S.C.J. No. 56, at para. 26, the Supreme Court held that the conduct of a trial in general, including the application of the rules of evidence in a given case, must not result in the trial being unfair because the accused had been denied a full opportunity to prepare his case, challenge and answer the Crown's case [emphasis is mine below]:

The conduct of a trial in general, including the application of the rules of evidence in a given case, must not result in the trial being unfair because the accused has been denied a full opportunity to prepare his case, challenge and answer the Crown's case, If a rule of law, statutory or common law, were framed in such a way that it would be per se a violation of the right to a fair trial, then the statute would be declared inoperative or the common law declared to be otherwise. …

[149]Moreover, the Court of Appeal for Ontario held, at paras. 96 and 97, in R. v. Cyr, [2012] O.J. No. 6148, that evidence which is relevant, material, and not barred by any specific admissibility rule may be excluded under the general exclusionary discretion if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time to present the evidence that is not commensurate with its value, or if it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material [emphasis is mine below]:

Evidence that is relevant, material, and not barred by any specific admissibility rule may be excluded under the general exclusionary discretion for which Mohan provides: Mohan, at pp. 20-21. This cost-benefit analysis determines whether the value of the evidence to the correct disposal of the litigation is worth the cost of its introduction to the litigation process: Mohan, at pp. 20-21.

Evidence may be excluded under this cost-benefit analysis if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time to present the evidence that is not commensurate with its value, or if it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material: Mohan, at p. 21. The reliability/effect balance is of particular importance

2018 ONCJ 640 (*)

where the evidence under consideration is expert opinion evidence: Mohan, at p. 21.

[150]Furthermore, it has also been emphasized that where it is necessary to prevent a miscarriage of justice, a trial judge can relax the strict rules of admissibility when hearsay evidence is being tendered by an accused: R. v. Sunjka, [2006] O.J. No.

2204 (Ont. C.A.) at paras. 23 and 24 [emphasis is mine below]:

Second, the trial judge appears to have given no consideration to his residual discretion to relax the strict rule, when it is the defence seeking to tender these out-of-court statements for their truth and where that evidence has some reliability. As Rosenberg J.A. said in R. v. Folland (1999), 132 C.C.C. (3d) 14 (Ont. C.A.) at 31:

In my view, while the trial judge must be satisfied that the prior out-of-court utterances have some reliability, the strict standards set, in the context of an application by the Crown to make substantive use of prior inconsistent statements incriminating the accused, in R. v. B.(K.G.), [1993] 1 S.C.R. 740, do not apply.

Third, in coming to his decision, the trial judge relied on the fact that Khan gave a videotaped statement to the police that night that was inconsistent with the admissions. However, in determining threshold reliability, it is the circumstances of the hearsay statement itself that must be considered, not other statements made prior to or subsequent to the one being scrutinized. In R. v. Starr, (2000)

147 C.C.C. (3d) 449 (S.C.C.) Iacobucci J. put it this way at p. 535:

At the stage of hearsay admissibility, the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself.

[151]As well, for reasons of fairness, when an accused adduces hearsay evidence there is discretion on the trial judge to relax the strict application of the hearsay rules in favour of admissibility as long as the criteria of necessity and reliability are met. This idea was noted in Paciocco and Steusser’s textbook, The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), at p. 118, where the authors emphasized that when hearsay evidence is tendered by an accused, a trial judge can relax the strict rules of admissibility where it is necessary to prevent a miscarriage of justice. The authors also indicated that such preferential treatment acknowledges the liberty interest of the accused, but that the necessity and reliability concerns are not simply swept aside for the defence. However, the authors emphasized that the rules may be relaxed but not abandoned, and for fairness concerns for the accused, that the reliability and necessity analysis is merely tipped in favour of the accused [emphasis is mine below]:

Before admitting hearsay statements under the principled approach, the trial judge must determine on a voir dire that necessity and reliability have been

2018 ONCJ 640 (*)

established on a balance of probabilities. In a criminal context, concerns for necessity and reliability take on a constitutional dimension. Justice Iacobucci emphasized that it is a principle of fundamental justice, protected by the Charter, that the innocent must not be convicted and to allow the Crown to introduce unreliable hearsay against an accused would compromise trial fairness, and raise the spectre of wrongful convictions. “Trial fairness” is not just a one-way street. In R. v. Khelawon the Court noted that society too has an interest in seeing that the trial process arrives at the truth and that “the criterion of necessity is founded on society’s interest in getting at the truth.” It is recognized that where hearsay evidence is tendered by an accused, a trial judge can relax the strict rules of admissibility where it is necessary to prevent a miscarriage of justice. Such preferential treatment acknowledges the liberty interest of the accused. But this is not to say that the necessity/reliability concerns are swept aside for the defence. A close review of the cases where this proposition is applied shows that the evidence sought to be admitted by the defence was close to the line in terms of admissibility. Fairness concerns, therefore, merely tipped the reliability/necessity analysis in favour of the accused; the rules were relaxed but not abandoned. …

[152]Consequently, as the defendant had been unrepresented and not familiar with the rules of evidence, and the defendant had been doing his best to explain, outline, and establish his defence, the defendant was given substantial leeway to try to make full answer and defence and to get his defence out through his testimony, even though it had been teeming with hearsay and unsubstantiated statements and statements that contradicted what prosecution witnesses had testified to under oath that had not been challenged by the defendant when those prosecution witnesses were in the witness stand. As such, despite the prosecution’s blanket objection to the defendant’s testimony that was not comporting with the rules of evidence, it had been allowed in for the most part, but that it would be only considered for the appropriate weight.

(7)Was There Prosecutorial Misconduct During The Trial?

[153]The defendant contends there had been numerous incidences of prosecutorial misconduct during the portion of the trial when the defendant had been unrepresented, which the defendant submits is the basis for finding an abuse of process. Furthermore, the defendant contends that the prosecutor’s improper conduct has prejudiced the defendant’s right to a fair trial, as well as contravening fundamental notions of justice which underlies the community’s sense of fair play and decency, and thus undermines the integrity of the judicial process The prosecution, on the other hand, argues that the defendant’s allegations to support his application for abuse of process are offensive, misplaced and consist of statements and/or submissions by the prosecution, taken in isolation, out of context, or mischaracterized.

2018 ONCJ 640 (*)

(a)The prosecutor’s actions or conduct during the trial that the defendant contends would constitute misconduct

[154]The defendant also contends that the cumulative effect of the prosecutor’s inappropriate conduct during the trial when the defendant was unrepresented has caused the defendant from having a fair trial and that it has also undermined the integrity of the judicial process. Moreover, the defendant contends that the prosecutorial misconduct included the following:

(i)The prosecutor had asked leading questions of his own witnesses in the trial;

(ii)The prosecutor had elicited hearsay and lay opinion evidence from prosecution witnesses;

(iii)The prosecutor had elicited or had presented irrelevant bad character evidence;

(iv)The prosecutor gave evidence;

(v)The prosecutor got the defendant to comment on the veracity of prosecution witnesses;

(vi)The prosecutor had cross-examined or questioned the defendant about his relationship with his counsel and made suggestive commentary about the reasons why his legal representative may have stopped acting for the defendant;

(vii)The prosecutor had attacked and inappropriately commented on the defendant’s lifestyle and associations with unsavory persons;

(viii)The prosecutor had inserted editorial commentary into his cross- examination of the defendant by providing his personal opinion about the merits of the case against the defendant, on the merits of the defendant’s defence, and on the credibility or veracity of the defendant’s testimony;

(ix)The prosecutor had used sarcastic and demeaning language when cross-examining the defendant;

(x)The prosecutor had grilled the defendant on the witnesses he intended to call and his efforts to contact and get the witnesses to court and whether the defendant had brought any of the documents that the defendant said he had and which he had promised to bring;

2018 ONCJ 640 (*)

(xi)The prosecutor had led evidence regarding the defendant’s failure to cooperate with the authorities, in particular the defendant’s refusal to speak with authorities, and the prosecutor had also cross-examined the defendant on his failure to assert his innocence when confronted by investigators;

(xii)The prosecutor had argued with the defendant directly rather than speaking or making submissions through the court; and

(xiii)The prosecutor had threatened to request the maximum penalty available for the defendant for arbitrary reasons.

[155]In R. v. Varga, [1994] O.J. No. 1111, at paras. 48 to 50, the Court of Appeal for Ontario held that a trial judge has a responsibility to ensure that no witness is harassed or otherwise mistreated when giving evidence, as well as being sensitive to an accused's right to make full answer and defence through effective cross- examination of the witnesses called by the Crown. Moreover, the Court of Appeal recognized that a trial judge has an advantaged position to watch the witness and the questioner as the cross-examination proceeds, to observe the effect of the cross-examination, and to hear the tone of voice in which questions are asked and answered. Furthermore, the Court of Appeal also emphasized that the trial judge is able to use these oral and visual aids in distinguishing between cross- examination which is persistent and exhaustive, and that which is abusive, as well as being able to assess the extent to which the attitude and answers of the witness contribute to the nature and tone of the cross-examination [emphasis is mine below]:

A trial judge has a responsibility to ensure that no witness is harassed or otherwise mistreated when giving evidence. At the same time, a trial judge must be sensitive to an accused's right to make full answer and defence through effective cross- examination of the witnesses called by the Crown. In weighing both concerns, a trial judge is entitled to consider the position of trial counsel, and specifically the absence of any objection to the overall tenor of the cross- examination.

In deciding whether a trial judge should have prohibited cross-examination as abusive, an appellate court must also recognize the advantaged position of the trial judge. He or she is able to watch the witness and the questioner as the cross- examination proceeds, to observe the effect of the cross-examination, and to hear the tone of voice in which questions are asked and answered. The trial judge is able to use these oral and visual aids in distinguishing between cross- examination which is persistent and exhaustive, and that which is abusive. The trial judge is also able to assess the extent to which the attitude and answers of the witness contribute to the nature and tone of the cross-examination.

The cross-examination of Ms. Waddell was detailed, vigorous, and confrontational. This is hardly surprising, given that it was the position of the

2018 ONCJ 640 (*)

defence that the entire allegation was a fabrication. Defence counsel was obliged, in the service of his client, to use every legitimate means available to him to challenge and undermine the credibility of the complainant. A consideration of the entirety of the cross-examination satisfies me that counsel did not, save perhaps in a few isolated instances, go beyond the bounds permitted by our adversarial process.

[156]Furthermore, examples of inappropriate cross-examination of an accused that could lead to an unfair trial were identified by the Court of Appeal for Ontario in R. v. A.J.R., [1994] O.J. No. 2309. In R. v. A.J.R., Doherty J.A., at paras. 22 to 34, and 42, acknowledged that Crown counsel is entitled and expected in some cases to conduct a vigorous cross-examination of an accused. In addition, Doherty J.A. explained that effective cross-examination of an accused serves the truth-finding function as much as does effective cross-examination of a complainant. However, Doherty J.A. found in that particular case on appeal, which had been a “jury trial”, Crown counsel had gone beyond the boundaries of proper cross-examination of the accused and had gone beyond aggressive to abusive, which had indeed led to a unfair trial for the accused. Moreover, Doherty J.A. held that Crown counsel’s cross-examination of the accused had “adopted a sarcastic tone” with the accused and had “repeatedly inserted editorial commentary into her questions”; that Crown counsel’s “approach was calculated to demean and humiliate the appellant”; that Crown counsel in many instances had used the pretense of questioning the accused to “demonstrate her contempt for the accused” and the evidence the accused was giving before the jury; that Crown counsel “repeatedly gave evidence” and “stated her opinion” during cross-examination; that Crown counsel had ”engaged in extensive argument with the accused”; that Crown counsel had repeatedly “called upon the accused to comment on the veracity of

Crown witnesses” and to “explain why these witnesses had fabricated their evidence”; and that Crown counsel conducted an improper and potentially prejudicial attack on the appellant's character and lifestyle by asking questions which went beyond the bounds of relevancy and legitimate credibility impeachment and became an attempt to “highlight the appellant's bad character and deviant lifestyle”. As such, Doherty J.A. concluded that Crown Counsel’s inappropriate cross-examination of the accused had destroyed the necessary appearance of fairness in the trial and resulted in a miscarriage of justice [emphasis is mine below]:

Crown counsel conducted an aggressive and exhaustive 141-page cross- examination of the appellant. She was well prepared and well armed for that cross-examination. Crown counsel is entitled, indeed in some cases expected, to conduct a vigorous cross-examination of an accused. Effective cross- examination of an accused serves the truth-finding function as much as does effective cross-examination of a complainant.

There are, however, well-established limits on cross-examination. Some apply to all witnesses, others only to the accused. Isolated transgressons of those limits may be of little consequence on appeal. Repeated improprieties during the

2018 ONCJ 640 (*)

cross-examination of an accused are, however, a very different matter. As the improprieties mount, the cross-examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross-examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene: R. v. Fanjoy, [1985] 2 S.C.R. 233, 21 C.C.C. (3d) 312; R. v. Ruptash (1982), 68 C.C.C. (2d) 182 at p. 189 (Alta. C.A.).

After careful consideration of the entire cross-examination of the appellant in the context of the issues raised by his examination-in-chief and the conduct of the entire trial, I am satisfied that the cross-examination must be characterized as abusive and unfair.

From the outset of the cross-examination, Crown counsel adopted a sarcastic tone with the accused and repeatedly inserted editorial commentary into her questions. I count at least eight such comments in the first eight pages of the cross-examination. During that part of the cross-examination, Crown counsel referred to one answer given by the appellant as "incredible". She repeatedly asked the appellant if he "wanted the jury to believe that one too". When questioned as to how he met T., the appellant said he was told by a friend that a relative would be coming to see him, whereupon Crown counsel remarked "so I guess you were expecting some long lost cousin in the old country". After the appellant had described his reaction to being told by T. that she was his daughter, Crown counsel sarcastically said "gee, I guess everybody would react the way you did".

Crown counsel's approach from the very beginning of the cross-examination was calculated to demean and humiliate the appellant. She persisted in that approach throughout. For example, after the appellant said that he had allowed T. to move in with him shortly after they had met, Crown counsel said "you are just a really nice guy". At another point, she said, "tell me sir, do fathers usually have sexual intercourse with their daughters". Still later, after the appellant had testified that his girlfriend had left him but had told him that she wished to come back, Crown counsel said "you just have all these women running after you wanting to come back".

These are but a few of a great many instances where Crown counsel used the pretence of questioning the appellant to demonstrate her contempt for him and the evidence he was giving before the jury. No counsel can abuse any witness. This self-evident interdiction applies with particular force to Crown counsel engaged in the cross-examination of an accused.

The tone adopted by Crown counsel is not the only problem with her cross- examination. Crown counsel repeatedly gave evidence and stated her opinion during cross-examination. She also engaged in extensive argument with the appellant. For example, when the appellant gave contradictory explanations in the course of cross-examination, Crown counsel announced "you were lying", and when the appellant questioned Crown counsel's description of T. as "your victim" Crown counsel replied "certainly she is". Still later, after Crown counsel had very effectively cross-examined the appellant as to when he had learned that

2018 ONCJ 640 (*)

T. was his daughter, she proclaimed "you are playing games with me, with this jury". She followed that comment with the admonition "let's try and be honest". In several instances, the cross-examination degenerated into pure argument between the appellant and Crown counsel. After one lengthy exchange, Crown counsel announced: "It is hard to keep up with you sir because you keep changing your story".

Statements of counsel's personal opinion have no place in a cross-examination. Nor is cross-examination of the appellant the time or place for argument.

Crown counsel also repeatedly called upon the appellant to comment on the veracity of Crown witnesses and to explain why these witnesses had fabricated their evidence. Crown counsel pursued this line of questioning in relation to at least four Crown witnesses. With respect to some of the witnesses, the questions were repeated at different points in the cross-examination. For example, Crown counsel asked the appellant whether J. had "totally fabricated that evidence" and then asked him "why that little girl totally fabricated that evidence". After Crown counsel had put the appellant in the position of calling four of the Crown witnesses liars, the trial judge intervened and suggested that the questions were improper. Crown counsel returned to that form of questioning on at least one occasion following the trial judge's admonition.

The impropriety of these questions cannot be doubted and Crown counsel in this court acknowledged that they were improper: R. v. Daly, supra, at p. 76; R. v. Logiacco (1984), 11 C.C.C. (3d) 374 at p. 383, 2 O.A.C. 177 (C.A.). Crown counsel submitted that although the questions were improper, they caused no prejudice. She observed, quite accurately, that the defence implicitly involved an assertion that the Crown witnesses and, in particular, T., had concocted the allegations against the appellant.

The nature of the defence advanced will impact on the harm, if any, caused by this type of questioning: R. v. Yakeleya (1985), 20 C.C.C. (3d) 193 at p. 196, 14 C.R.R. 381 (Ont. C.A.). Despite the defence advanced, I cannot say that the repeated resort to this technique, whereby the appellant was placed in the position of accusing others, did not prejudice him in the eyes of the jury. By means of these improper questions, Crown counsel was able to paint the appellant as a callous accuser ready to charge virtually everyone, including a terrified, emotionally distraught young child, with deliberately fabricating evidence against him. These improper questions also forced the appellant to offer explanations for the allegedly false testimony offered by the Crown witnesses. In the case of J. and T., the explanations only served to open further fertile grounds for cross-examination.

I am also driven to the conclusion that at many points in the cross-examination, Crown counsel conducted what amounted to an improper and potentially prejudicial attack on the appellant's character and lifestyle. Given the allegations, it was inevitable and essential that the jury learn something of the appellant's sordid lifestyle and character to assess the charges before them properly. The appellant's decision to testify also meant that his lengthy criminal record would be placed before the jury. These conditions created a real danger that the jury could convict based on their assessment of the appellant as a despicable and evil man,

2018 ONCJ 640 (*)

rather than on a finding that the Crown had proven any or all of the charges beyond a reasonable doubt. Crown counsel's cross-examination significantly increased this danger.

There are numerous instances in the cross-examination when the questions went beyond the bounds of relevancy and legitimate credibility impeachment and became an attempt to highlight the appellant's bad character and deviant lifestyle. The appellant was cross-examined about whether he had filed income tax returns. He was also questioned about the criminal records of his associates and about his attitudes, as "a former drug dealer", to T.'s use of prescription pills. Still later, Crown counsel asked the appellant about his respect "for the law and court orders". Crown counsel also cross-examined the appellant to show that he was sexually promiscuous and had no sense of responsibility to any of the women with whom he had been involved during his lifetime. At another point in the cross-examination, she referred to the appellant as "a jailhouse lawyer".

The improper and prejudicial cross-examination by Crown counsel, however, overtakes the effect of the non-direction. The cross-examination destroyed the necessary appearance of fairness in the trial and resulted in a miscarriage of justice. The strength of the Crown's case becomes irrelevant in determining the appropriate disposition and s. 686(1)(b)(iii) has no application: R. v. Fanjoy, supra, at pp. 239-40 S.C.R., pp. 317-18 C.C.C.; R. v. C. (W.) (1990), 54 C.C.C. (3d) 37 at p. 39 (Ont. C.A.). The miscarriage of justice lies in the conduct of the proceedings and not in the verdict arrived at by the jury. All of the convictions must be set aside and a new trial ordered on all of those charges.

[157]Furthermore, Labrosse J.A. held, at paras. 22 to 30, in R. v. Henderson, [1999] O.J. No. 1216 (Ont. C.A.), that the effect of Crown counsel's impugned conduct must be assessed in light of the fundamental role of Crown counsel during a criminal trial, which include not only responsibilities as a public advocate, but to also serve in a quasi-judicial capacity. Moreover, Labrosse J.A. held that in all circumstances, even when defence counsel is provoking, defiant and argumentative, and their questioning of witnesses is difficult to follow and unnecessarily lengthy, that regardless of defence counsel's behaviour, Crown counsel should remain scrupulously fair. Moreover, Labrosse J.A. recognized that the line between Crown counsel conduct that is merely inappropriate and conduct that is so prejudicial that it deprives the accused of a fair trial is not easily drawn, and that in the midst of a cross-examination of the accused, the dual roles of Crown counsel as both an advocate and a minister of justice may not appear easily reconciled. However, Labrosse J.A. noted that there is no reason why a cross-examination cannot be conducted by a Crown prosecutor with some measure of respect for a witness which would not be inconsistent with a skilful, probing and devastating cross-examination [emphasis is mine below]:

The effect of Crown counsel's conduct must be assessed in light of the fundamental role of Crown counsel during a criminal trial. Crown counsel's role

2018 ONCJ 640 (*)

within the criminal justice system is unique. In addition to responsibilities as a public advocate, Crown counsel also serves in a quasi-judicial capacity. In R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 at 12 (S.C.C.), Sopinka J. highlighted this aspect of the Crown's role:

"The tradition of Crown counsel in this country in carrying out their role as 'ministers of justice' and not as adversaries has generally been very high."

The classic articulation of Crown counsel's role was set out in R. v. Boucher (1954), 110 C.C.C. 263 at 270 (S.C.C.) where Rand J. stated:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. In Boucher, Taschereau J. added the following comments which were cited with approval by Lamer C.J. in R. v. Sweitlinski, [1994] 3 S.C.R. 481 at 494-95:

[Translation] The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi-judicial. His duty is not so much to obtain a conviction as to assist the judge and jury in ensuring that the fullest possible justice is done. His conduct before the court must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond all reproach if eschewing any appeal to passion, and employing a dignified manner suited to his function, he presents the evidence to the jury without going beyond what it discloses.

In this case, the performance of defence counsel (not counsel on appeal) was not a model of advocacy. On the contrary, he was at times provoking, defiant and argumentative and his questioning of witnesses was difficult to follow and unnecessarily lengthy. Such conduct on the part of defence counsel should not be condoned and should be addressed by the trial judge. However, even when, as in this case, the trial judge fails to intervene, improper conduct by defence counsel does not justify improper conduct by Crown counsel. In all circumstances, regardless of defence counsel's behaviour, Crown counsel should remain scrupulously fair.

Generally, Crown counsel perform all aspects of their functions honourably and fairly, and in most cases the respectable conduct of Crown counsel undoubtedly enhances public confidence in the criminal justice system. To this extent, I note the comments made by Cory J. in R. v. Bain (1992), 69 C.C.C. (3d) 481 (S.C.C.) where he states: "[a]s a rule the conduct and competence of Crown Attorneys is exemplary. They are models for the Bar and the community." The efforts of Crown counsel are particularly admirable given their significant case loads and considerable resource restrictions.

Notwithstanding the overall commendable conduct of Crown counsel, in recent years, there appear to have been a number of appeals based upon improper

2018 ONCJ 640 (*)

Crown counsel conduct during cross-examinations and jury addresses: see, for example, R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.); R. v. Munroe (1995), 96

C.C.C.(3d) 431 (Ont. C.A.); R. v. Nugent (1995), 24 O.R. (3d) 295 (C.A.); and R. v. R.(A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.). Unfortunately, this Court's message that improper conduct by Crown counsel will not be tolerated has not always been heeded.

The line between Crown counsel conduct that is merely inappropriate and conduct that is so prejudicial that it deprives the accused of a fair trial is not easily drawn: see R. v. Daly (1992), 57 O.A.C. 70 and R. v. Yakeleya (1985), 20

C.C.C.(3d) 193 (Ont. C.A.). This line is particularly difficult to draw in cases that essentially turn on the credibility of Crown and defence witnesses. In such cases, there often appears to be a temptation to cross the line in an effort to attack the credibility of a witness. The prejudice that results is not easily measured. Respect for the administration of justice is not enhanced where the courts appear to condone improper conduct. In my opinion, the preservation of the criminal justice system requires that appellate courts focus on the classic role of Crown counsel when reviewing allegedly improper Crown counsel conduct.

I recognize that in the midst of a cross-examination of the accused, the dual roles of Crown counsel as both an advocate and a minister of justice may not appear easily reconciled. However, it is appropriate to keep in mind the comments of Cory J.A. in R. v. Logiacco (1984), 11 C.C.C. (3d) 374 at 383-84 (Ont. C.A.), where he said: "There is no reason why a cross-examination cannot be conducted by a Crown prosecutor with some measure of respect for a witness which would not be inconsistent with a skilful, probing and devastating cross- examination."

The impact of Crown counsel's improper conduct in this case must also be assessed in light of this Court's decision in R. v. R.(A.J.), supra, where Doherty J.A., while acknowledging that Crown counsel is entitled to vigorously cross- examine the accused, adds the following qualifications:

There are, however, well-established limits on cross-examination. Some apply to all witnesses, others only to the accused. Isolated transgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross- examination of an accused are, however, a very different matter. As the improprieties mount, the cross-examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross-examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene.

Counsel for the Crown on appeal characterized the cross-examination of the appellant as "imperfect". In my view this characterization does not go far enough. Crown counsel's conduct during cross-examination, viewed in its totality and with regard to the obligation on Crown counsel to act in a scrupulously fair manner, crossed over the line and must be characterized as improper and unfair. While an isolated improper incident may not be sufficient to impugn the verdict, in the present case, the cumulative effect of the improprieties in the cross-examination of the appellant resulted in serious prejudice. In total, the cross-examination of the appellant was only 23 pages. The cross-examination did not assist the jury to

2018 ONCJ 640 (*)

understand the real issues in the case and was not a proper test of the reliability or credibility of the appellant's defence. The four incidents that have been reviewed covered a substantial portion of the total cross-examination. Furthermore, the prejudicial effect of Crown counsel's cross-examination was in no way diffused by the trial judge.

[158]Also, in R. v. Fanjoy, [1985] S.C.J. No. 55, which involved considering whether the Crown counsel’s cross-examination caused an unfair trial, the Supreme Court of Canada held, at para 9, that there are limits to the extent of cross-examination and the manner in which it may be conducted, and that there is always a discretion in the trial judge and a duty to confine the cross-examination in criminal cases within proper limits, particularly where questions of credibility of witnesses are in issue. Moreover, the Supreme Court explained that a wide latitude is accorded to counsel and too fine a line should not be drawn to confine or limit a detailed and searching inquiry into the matters raised by the evidence given by the accused and other witnesses, and that the discretion to intervene in a cross-examination must, of course, be exercised judicially. Moreover, the Supreme Court held that its exercise does not rest on legal considerations alone, but will depend as well on the facts and circumstances in each case, and will not be determined by the simple application of a fixed rule of law [emphasis is mine below]:

Was the failure of the trial judge to restrain the abusive cross-examination an error of law? Of course, a legal element was involved in the decision which faced the trial judge. The question of admissibility of evidence is a question of law. Crown counsel has a right in law to cross-examine the accused and, accordingly, to deny that right or unduly limit it raises considerations of law. There are, however, limits to the extent of the cross-examination and the manner in which it may be conducted, and there is always a discretion in the trial judge and a duty to confine the cross-examination within proper limits. There is, of course, no doubt that in cross-examination in criminal cases, particularly where questions of credibility of witnesses are in issue, a wide latitude is accorded to counsel and too fine a line should not be drawn to confine or limit a detailed and searching inquiry into the matters raised by the evidence given by the accused and other witnesses. The discretion to intervene in a cross-examination must, of course, be exercised judicially. Its exercise does not rest on legal considerations alone, but will depend as well on the facts and circumstances in each case, and will not be determined by the simple application of a fixed rule of law. The decision to exercise the discretion to intervene in cross-examination, or to refrain from intervention, is one involving considerations of both law and fact and cannot be said to be a question of law alone. Each case will depend on its own circumstances, and no doubt there will frequently be difficulty in deciding from case to case whether the point has arrived in a cross-examination where the trial judge should intervene. It is in this case abundantly clear, however, that that point was reached and passed. The trial judge was obviously concerned at the course the cross-examination was taking. He did intervene on at least two occasions to caution counsel and to attempt to restrict counsel within proper limits, but this did not affect the cross-examination in any significant way. That he

2018 ONCJ 640 (*)

was in error in this regard was found by the Court of Appeal and it was noted by Brooke J.A. that it "could only unfairly prejudice the appellant".

(i)The prosecutor had asked leading questions of his own witnesses in the trial

[159]The defendant contends that the prosecutor had improperly used leading questions with its own witnesses. Indeed, the prosecutor had asked some leading questions of their witnesses in examination-in-chief. Those involved questions posed to Jay Jairam and Ahmed Khan, the respective homeowners of 22 Vespahills Crescent, Brampton and 291 Boon Avenue, Toronto, which had been in regards to whether the respective homeowners had actually observed the defendant doing electrical work in their respective houses before there had been any evidence that had been adduced of who had done the electrical work at Jairam’s and Khan’s respective houses. And, because the identity of the person who did the electrical work was a key issue in the trial and a key element of the offence that had to be proven, then no weight can be put onto Jairam’s and Khan’s answers that resulted from that particular leading question. On the other hand, subsequent to the answers provided by Jairam and Khan to the prosecutor’s leading question, both Jairam and Khan had testified to observing the defendant doing electrical work in their respective houses which had not followed a leading question from the prosecutor, which would carry weight as evidence of who had been the person who did the electrical work during the renovation of 22 Vespahills Crescent, Brampton and of 291 Boon Avenue, Toronto.

[160]In Maves v. Grand Trunk Pacific Ry. Co., [1913] A.J. No. 53, at paras. 11 to 18, the Alberta Court of Appeal acknowledged and adopted the following principle for the use of leading questions, which is that the party who has called a witness is not generally permitted to ask that witness leading questions on material points; but on matters which are merely introductory and form no part of the substance of the enquiry, it is both allowable and proper for a party to lead his own witnesses [emphasis is mine below]:

I find the general subject of leading questions dealt with in a most satisfactory way in Best on Evidence, 11th ed., 624 et seq. I quote, italicising what I wish to emphasize:--

The chief rule of practice relative to the interrogation of witnesses is that which prohibits "leading questions," i.e., questions which directly or indirectly suggest to the witness the answer he is to give. The rule is, that on material points a party must not lead his own witnesses, but may lead those of his adversary; in other words, that leading questions are allowed in cross-examination, but not in examination-in-chief. This seems based on two reasons: first, and principally, on the supposition that the witness has a bias in favour of the party bringing him forward, and hostile to his opponent; secondly, that the party calling a witness has an advantage over his adversary, in knowing beforehand what the witness will prove, or, at least, is expected to prove; and that, consequently, if he were allowed to lead, he might interrogate in such a manner as to extract only so much

2018 ONCJ 640 (*)

of the knowledge of the witness as would be favourable to his side, or even put a false gloss upon the whole.

I think a third reason may be added, namely, that a witness, though intending to be entirely fair and honest may, owing, for example, to lack of education, of exactness of knowledge of the precise meaning of words or of appreciation at the moment of their precise meaning, or of alertness to see that what is implied in the question requires modification, honestly assent to a leading question which fails to express his real meaning, which he would probably have completely expressed if allowed to do so in his own words.

The author proceeds as follows (Best on Evidence, 11th ed., 625):--

On all matters, however, which are merely introductory, and form no part of the substance of the enquiry, it is both allowable and proper for a party to lead his own witnesses, as otherwise much time would be wasted to no purpose. It is sometimes said that the test of a leading question is, whether an answer to it by "Yes" or "No" would be conclusive upon the matter in issue; but although all such questions undoubtedly come within the rule, it is by no means limited to them. Where "Yes" or "No" would be conclusive on any part of the issue, the question would be equally objectionable; as if, on a traverse of notice of dishonour of a bill of exchange, a witness were led either as to the fact of giving notice, or as to the time when it was given. So leading questions ought not to be put when it is sought to prove material and proximate circumstances. Thus, on an indictment for murder by stabbing, to ask a witness whether he saw the accused, covered with blood and with a knife in his hand, coming away from the corpse, would be in the highest degree improper, though all the facts embodied in this question are consistent with his innocence. In practice, leading questions are often allowed to pass without objection, sometimes by express, and sometimes by tacit, consent. This latter occurs where the questions relate to matters which, though strictly speaking, in issue, the examining counsel is aware are not meant to be contested by the other side; or where the opposing counsel does not think it worth his while to object.

On the other hand, however, very unfounded objections are constantly taken on this ground. A question is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject respecting which he is questioned, e.g., on a question whether A. and B. were partners, it has been held not a leading question to ask if A. has interfered in the business of B.; for even supposing he had, that falls far short of constituting him a partner. ...

It should never be forgotten that "leading" is a relative, not an absolute term. There is no such thing as "leading" in the abstract -- for the identical form of question which would be leading of the grossest kind in one case or state of facts, might be not only unobjectionable, but the very fittest mode of interrogation in another.

So that the general rule is that in examining one's own witness, not that no leading questions must be asked, but that on material points one must not lead his own witness but that on points that are merely introductory and form no part of the substance of the inquiry one should lead.

And the author remarks:--

2018 ONCJ 640 (*)

Although not to lead one's own witness when that is allowable is by no means so bad a fault as leading improperly still it is a fault; for it wastes the time of the Court, has a tendency to confuse the witness, and betrays a want of expertness in the advocate: p. 627.

Upon the propriety of applying the second branch of the general rule, the remarks of Lord Ellenborough in Nicholls v. Dowding, 1 Starkie 81, are instructive: In order to prove that the defendants were partners a witness was asked whether the defendant Kemp had interfered in the business of Dowding. The question was objected to as a leading one. Lord Ellenborough said:--

I wish that objections to questions as leading might be a little better considered before they are made. It is necessary, to a certain extent, to lead the mind of the witness to the subject of enquiry. If questions are asked, to which the answer yes or no would be conclusive, they would certainly be objectionable, but in general, no objections are more frivolous than those which are made to questions as leading ones.

To the general rule, as just stated, against leading, there are several well recognized exceptions which the author puts as follows:--

There are some exceptions to the rule against leading. 1. For the purpose of identifying persons or things, the attention of the witness may be directly pointed to them. 2. Where one witness is called to contradict another as to expressions used by the latter, but which he denies having used, he may be asked directly, "Did the other witness use such and such expressions"? The authorities are not quite agreed as to the reason of this exception; and some strongly contend that the memory of the second witness ought first to be exhausted by his being asked what the other said on the occasion in question. 3. The rule which excludes leading questions being chiefly founded on the assumption that a witness must be taken to have a bias in favour of the party by whom he is called, whenever circumstances shew that this is not the case, and that he is either hostile to that party or unwilling to give evidence, the Judge may, in his discretion, allow the rule to be relaxed. And it would seem that, for the same reason, if the witness shews a strong bias in favour of the cross-examining party, the right of leading him ought to be restrained; but the authorities are not quite clear about this. 4. The rule will be relaxed where the inability of a witness to answer questions put in the regular way obviously arises from defective memory; or, 5. From the complicated nature of the matter as to which he is interrogated.

The controversy, which arose in the present case, arose, I think, from a want of a full appreciation of the fourth stated exception; which I should prefer to put thus: "That the rule against leading ought to be relaxed where non-leading questions fail to bring the mind of the witness to the precise point on which his evidence is desired, and it may fairly be supposed that this failure arises from a temporary inability to remember."

[161]Furthermore, the principles in respect to the appropriateness of counsel asking leading questions of their own witnesses has also been summarized in Paciocco and Steusser’s textbook, The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011). At pp. 416-417, Paciocco and Steusser stressed that the answers to

2018 ONCJ 640 (*)

leading questions are not inadmissible, but the fact that they had been obtained by leading questions may affect their weight. Paciocco and Steusser also noted that there are two kinds of leading questions: the first kind suggests the answer to the witness; while the second kind presupposes the existence of a fact not presented by that witness in evidence. In addition, Paciocco and Steusser also provided a list of situations in which the first kind of leading questions is appropriate, which include, “introductory or undisputed matters”, “the identification of persons or things, “the contradiction of statements made by another”, “complicated or technical matters”, “where leave has been obtained to cross-examine a witness as adverse or hostile”, “where the witness is having difficulty answering the question and leave has been obtained to lead the witness”, “where the question will refresh the memory of a witness and leave has been obtained to lead the witness”, and “any other case where leave has been obtained to lead the witness, in the interests of justice” [emphasis is mine below]:

The party calling a witness should generally use open-ended as opposed to leading questions. Although the answers to leading questions are not inadmissible, the fact that they were obtained by leading questions may affect their weight. There are two kinds of leading questions. The first kind suggests the answer to the witness. The second kind presupposes the existence of a fact not presented by that witness in evidence. This second kind of leading question is never permissible unless the presupposed matter is not contested. There are numerous situations where the first kind of leading question is appropriate. These include

introductory or undisputed matters,

the identification of persons or things,

the contradiction of statements made by another,

complicated or technical matters,

where leave has been obtained to cross-examine a witness as adverse or hostile,

where the witness is having difficulty answering the question and leave has been obtained to lead the witness,

where the question will refresh the memory of a witness and leave has been obtained to lead the witness,

and any other case where leave has been obtained to lead the witness, in the interests of justice.

[162]Again, because answers to leading questions in themselves are not in principle inadmissible and only go the weight, which can be appropriately afforded to that

2018 ONCJ 640 (*)

evidence, and because this is a non-jury trial, there would be no concern of prejudice to a fair trial or prejudice to the integrity of the judicial process.

[163]But more importantly, where the particular evidence provided by a prosecution witness is evidence that had been obtained from a leading question from the prosecutor and which is in respect to a key element of the offence that had to be proven by the prosecutor, then that particular evidence would be considered only for weight. However, if the evidence resulting from a leading question is for non- contentious fact then there would be little concern.

[164]In applying the relevant legal principles to the present case on what consideration should be given to evidence that is the result of the prosecutor’s leading question to their own witnesses as proof of an essential element of the offence, such evidence would carry no weight. On the other hand, the same evidence which had been adduced from a leading question had also been given subsequently by the same witness where there had been no concern it had been the result of a leading question. Accordingly, the evidence resulting from a leading question would carry no weight, but the same evidence adduced later that had not been from a leading question would carry substantial weight.

[165]But more importantly, since the use of leading questions is an evidentiary issue, then the defendant’s concern about the prejudicial effect of evidence adduced from leading questions by the prosecutor to their own witnesses is lessened, as this was a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and would also be able to disabuse and give no weight to the impugned evidence or to use it improperly as proof of guilt.

[166]Therefore, the prosecutor’s conduct in using leading questions to adduce evidence from prosecution witnesses under examination-in chief in a non-jury trial was not improper and did not cause prejudice to the fairness of the trial or caused prejudice to the integrity of the judicial process that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(ii)The prosecutor had elicited hearsay and lay opinion evidence from prosecution witnesses

[167]Furthermore, the defendant contends that the prosecutor had elicited hearsay and lay opinion evidence from prosecution witnesses during the part of the trial when the defendant was unrepresented, and as such, the defendant submits the prosecutor’s conduct had prejudiced the defendant’s right to a fair trial, as well as undermining the integrity of the judicial process.

[168]The Supreme Court of Canada has indicated in R. v. Levogiannis, [1993] S.C.J. No. 70, at para. 22, that the recent trend has been to remove barriers to the truth-

2018 ONCJ 640 (*)

seeking process by relaxing certain rules of evidence, such as the hearsay rules, the use of videotaped evidence and out of court statements, which has been a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to foster the search for truth [emphasis is mine below]:

One must recall that rules of evidence are not cast in stone, nor are they enacted in a vacuum. They evolve with time. As discussed at length in L. (D.O.), supra, the recent trend in courts has been to remove barriers to the truth-seeking process (R. v. Khan, [1990] 2 S.C.R. 531; R. v. W. (R.), supra; and R. v. Marquard, [1993] 4 S.C.R. 223). Recent Supreme Court of Canada decisions (R. v. B. (K.G.), supra; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Khan; and most recently in L. (D.O.)), by relaxing certain rules of evidence, such as the hearsay rules, the use of videotaped evidence and out of court statements, have been a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to foster the search for truth.

[169] But more importantly, in R. v. K.T. (2013), 295 CCC (3d) 283 (Ont. C.A.), at para. 46, Watt J.A. has recognized that the impact of improperly admitted reply evidence may be less in a non-jury trial than in a jury trial [emphasis is mine below]:

Second, the impact of improperly admitted reply evidence may be less in a non-jury trial than in a jury trial. In a jury trial, the late introduction of a piece of evidence may create or magnify its importance well beyond what an objective assessment of it would warrant in relation to the balance of the evidence in the case: R. v. Markman, 2002 * (Ont. C.A.), at para. 3; Biddle, at para. 14; and Campbell, at p. 693.

a)The prosecutor had elicited hearsay evidence from prosecution witnesses

[170]The defendant contends that the prosecutor had elicited hearsay evidence from the prosecution witnesses in their case-in-chief. In particular, the defendant submits that the prosecutor had asked Ahmed Khan, the homeowner of 291 Boon Avenue, Toronto, about Steve Duff’s views regarding the quality of work performed by the defendant and Khan’s understanding about the relationship between Steve Duff and the defendant, for which Ahmed Khan had responded that Steve Duff had informed Khan that the defendant’s electrical work in the basement had been wrong and that the defendant and Steve Duff are friends from back home in Jamaica. In addition, the defendant submits that Ahmed Khan also gave hearsay evidence about Steve Duff not being a licenced electrician, which Khan had learned from the ESA, and also hearsay evidence that others had told Khan that the defendant was not an electrician but a car electrician, like a sound system electrician.

[171]Moreover, the defendant also submits that the prosecutor had elicited hearsay evidence from Ahmed Khan on Khan’s lawyer’s searches in respect to any real

2018 ONCJ 640 (*)

estate or assets owned by the defendant for a potential lawsuit against the defendant, for which Khan had answered that the defendant did not have any assets in his name and that his lawyer had advised Khan that Khan would not be able to recover anything from the defendant in a lawsuit.

[172]In addition, the defendant further submitted that ESA Investigator Corbett had also provided hearsay evidence on what Paublo Medina had told Corbett that the defendant was not using Paublo Medina anymore on the 291 Boon Avenue, Toronto job and that the defendant also did not pay Medina the money that the defendant had owed to Medina.

[173]In response, to whether this hearsay evidence would have been prejudicial or unfair, the prosecution submits that this evidence was not damaging and was only narrative and not evidence being relied on for its truth, or as evidence of whether the defendant had done the electrical work at 291 Boon Avenue, or whether the defendant had been operating an electrical contracting business, or whether the defendant had a licence to be an electrician or an electrical contractor in Ontario. However, the prosecution submits that Ahmed Khan’s testimony that the defendant and Steve Duff were friends from back home in Jamaica would have no impact on the case against the defendant and provides nothing more than a narrative, since the question at issue is whether the electrical work that was done at 291 Boon Avenue, Toronto had been done by the defendant or had it been undertaken by Steve Duff.

[174]The prosecution further submits that Paublo Medina’s relationship with the defendant is relevant, since the defendant had raised the issue of Medina’s involvement in the conspiracy against the defendant and because of Medina’s health that Medina may not be able to appear as a witness in this trial.

[175]In Paciocco and Steusser’s textbook, The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), at p. 105, the authors note that only those statements offered for their truth offend the rule against hearsay. Moreover, Paciocco and Steusser emphasize that hearsay evidence is not identified by the nature of the evidence, but by the use to which the evidence is to be put. Therefore, Paciocco and Steusser affirm that when an out-of-court statement is offered simply as proof that the statement was made, it is not hearsay, and it is admissible as long as it has some probative value [emphasis is mine below]:

Only those statements offered for their truth offend the rule against hearsay. In other words, hearsay evidence is not identified by the nature of the evidence, but by the use to which the evidence is to be put. When an out-of-court statement is offered simply as proof that the statement was made, it is not hearsay, and it is admissible as long as it has some probative value. The person relating that the statement was made is in court and can be cross-examined. For example, take the following scenario:

2018 ONCJ 640 (*)

The plaintiff fell on steps leading into the defendant’s store and sues in negligence for injuries caused. A delivery driver is called. The driver testifies that one hour prior to the accident a customer came into the store and told the manager, “Your steps are covered with ice and need to be cleared.” The customer cannot be located.

Consider the use to which the delivery driver’s testimony is to be put. Knowledge of a potential hazard relates to what is reasonable or unreasonable in the circumstances. The customer’s statement amounts to a warning that a hazard existed. Its significance is that it was made and presumably heard by the manager. The delivery driver can be crossexamined on these points. Now if the statement were offered to prove that ice indeed covered the steps, it would be hearsay and, in order to test the truth of this statement, the customer would need to be crossexamined.

The question becomes one of relevancy: What relevant purpose does the statement have aside from its truth? If the statement has some probative value, it may be admissible for that limited purpose, though it is incumbent upon the trial judge to caution the jury as to its limited relevancy and to the fact that it is not admissible for its truth. Juries should not be left to determine the proper and improper uses of evidence. In the example above, the jury would need to be told that the delivery driver’s statement was admissible as evidence of notice of an ice hazard, but was not admissible to prove that the ice hazard actually existed.

[176]Furthermore, Paciocco and Steusser emphasize in their textbook, The Law of Evidence, 6ed., at p. 3, pp. 42 and 43, and pp 500 and 501, that courts should not use out-of-court statements as a narrative account of what happened — as proof of the truth of its contents, but if those out-of-court statements are relevant for other purposes then they can be admitted and used for those limited purposes. Furthermore, Paciocco and Steusser note that It is inevitable that in narrating a story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality, but this irrelevant evidence is harmless background material and reference to it is generally tolerated because it improves comprehension by presenting a total picture and makes it easier for the witness to recount the evidence. However, when immaterial, prejudicial or otherwise immaterial information does piggy-back its way into the record as part of the narrative, Paciocco and Steusser emphasize that judges must avoid relying on it for improper purposes. And in jury trials, if there is any risk that jurors could misuse the evidence, Paciocco and Steusser stress that judges must give limiting instructions directing those jurors as to the limitations on the use that the evidence can be put to. Moreover, Paciocco and Steusser explained that for hearsay to qualify as narrative, the witness must recount relevant and essential facts which describe and explain his or her experience as a victim of the crime alleged, so that the trier of fact will be in a position to understand what happened and how the matter came to the attention of the proper authorities [emphasis is mine below]:

It does not prohibit the admissibility of everything that has been said prior to court. It simply holds that ordinarily courts must not treat what has been said out

2018 ONCJ 640 (*)

of court as though it is the equivalent of in-court testimony. In other words, courts should not use out-of-court statements as a narrative account of what happened

as proof of the truth of its contents. On the other hand, if those out-of-court statements are relevant for other purposes they can be admitted and used for those limited purposes. For example, it is permissible to use an out-of-court statement made by a testifying witness to show that, in their current testimony, the witness has now changed their story from what they said before. The prior statement can be used to prove the contradiction, but not as proof of the facts it asserts. Most exclusionary rules work this way. They do not bar a particular kind of information. Instead, they restrict the uses to which information can be put when it is admitted.

It is inevitable that in narrating a story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality. For example, the trier of fact is likely to learn what a police officer was doing when a call was received, or whether the police officer was in a marked or an unmarked police vehicle. This is harmless background material, and reference to it is generally tolerated because it improves comprehension by presenting a total picture and makes it easier for the witness to recount the evidence. At times information that forms part of the natural narrative of an event is not simply trivial background information. Narrative information can be extremely prejudicial. In R. v. Smith, for example, events could not be described without narrating the “daily” criminal pursuits of the accused, charged with murder. As a result, the jury learned as part of the narrative about discreditable conduct by the accused that would otherwise have been immaterial and inadmissible. Care must be taken with the narrative doctrine; prejudicial information should gain this kind of “back door” entry only where significant testimony cannot be recounted meaningfully and fairly without its disclosure. Even then, the testimony should be edited pursuant to the judge’s exclusionary discretion to the extent it can be, to minimize any damage that may be done. When immaterial, prejudicial or otherwise immaterial information does piggy-back its way into the record as part of the narrative, judges must avoid relying on it for improper purposes; and in jury trials, if there is any risk that jurors could misuse the evidence, judges must give limiting instructions directing those jurors as to the limitations on the use that the evidence can be put to. The idea that some things are part of the story has influenced the development and application of a number of rules of evidence. The res gestae hearsay exceptions, for example, are premised to differing degrees on the relationship in time between the statements and the events those statements describe or reveal. Prior consistent statements made by a witness are not normally admissible, although the doctrine of “narrative” is sometimes used to justify leading some evidence that the witness made statements out of court. Fortunately, more is required to justify admission in these cases than the simple fact that the statements form part of the story. Each of the rules has its own criteria and limitations, which are discussed in the chapters that follow.

In some cases res gestae statements will be admitted, although not to prove the truth of their contents. These statements form “part of the story,” but fail to satisfy any of the hearsay exceptions. It may nonetheless be necessary to admit them in order to unfold the “narrative” properly. For example, in R. v. George, it was

2018 ONCJ 640 (*)

permissible for the Crown to show that when confronted by his cousin’s parents, the accused admitted that he had forced himself on his cousin. This confrontation would have made no sense to the jury unless they learned that the reason why the parents confronted the accused was because their daughter was complaining about having been sexually assaulted by him. Hence, the complaint, without its details, was admissible, but solely as background. It could not be used to support the inference that the complainant was more credible because of the prior consistent statement or to prove the truth of the complaint. Nor can such statements be used for their hearsay purpose as proof of what they allege. Where it appears that a judge or jury may have used the contents of a statement admitted under the narrative exception to corroborate or confirm the complainant’s testimony at trial, a conviction may have to be set aside. “Narrative” has become a common technique for presenting evidence about previous complaints by sexual assault complainants, particularly children. In R. v. F.(J.E.), the Ontario Court of Appeal was of the view that the trier of fact must have the “chronological cohesion” of a full account in order to understand the case. If they are not provided with that chronological cohesion, the story will unfold unnaturally, with distracting gaps. For example, in a case of ongoing sexual abuse, the trier needs to learn when the complainant recounted the assaults, how the assaults came to be terminated, and how the matter came to the attention of the police.

To qualify as narrative, the witness must recount relevant and essential facts which describe and explain his or her experience as a victim of the crime alleged so that the trier of fact will be in a position to understand what happened and how the matter came to the attention of the proper authorities. Two important things are clear from this line of authority. First, when it is being done on a pure narrative basis, the doctrine of narrative should be used to reveal the existence of prior statements solely where it is necessary to do so. If those statements have no impact on the unfolding of events, they should not be referred to. Second, only so much detail as is necessary to provide a comprehensible narration of events should be provided. Indeed, it has been said that “evidence of the prior consistent statements should only be described in general terms and should not contain much detail as details of the statement would invite the trier of fact to conclude that the witness must be telling the truth by reason of the apparent consistency with the witness’ testimony.” “Narration” does not open the door to the repetition in court of all that is said out of court.

1)Investigative hearsay is permitted to rebut a claim of an inadequate investigation

[177]Moreover, during the trial, the defendant had alluded to the circumstance that the investigation of the three charges done by the ESA had been inadequate. However, once that particular issue had been raised by the defendant, the prosecution is then permitted to adduce evidence to rebut this contention that the ESA investigation had been inadequate.

[178]In rebutting the defendant’s inadequacy claim, the prosecutor elicited evidence from ESA Investigator Gary Corbett on the chronology of his investigation and the

2018 ONCJ 640 (*)

information he had obtained, which linked the defendant to the electrical work done for the three homeowners. In particular, ESA Investigator Corbett explained how Steve Duff and Paublo Medina were related to the defendant and their specific involvement with the homeowners and their specific roles in the renovation of the three houses. However, most of this evidence that Corbett had provided had been based on what Steve Duff, Paublo Medina, and the three homeowners had told ESA Investigator Corbett out of court. On the other hand, if Steve Duff’s and Paublo Medina’s out-of-court statements were being relied on for its truth, then they are not admissible, but if the prosecution is using those out-of-court statements for some other purpose, then those out-of-court statements may be admissible as long as its probative value exceeds its prejudicial effect. In this case, Steve Duff’s and Paublo Medina’s out-of-court statements would not be relied upon for its truth, but used to rebut the contention of an inadequate investigation and that Corbett had actually interviewed and done an investigation of Steve Duff’s and Paublo Medina’s involvement with the defendant and in the renovation of the three houses in question. It would also form part of the narrative of Corbett’s investigation, which had led to the defendant being charged.

[179]In addition, although testimony from ESA Investigator Corbett on the defendant’s refusal to answer questions cannot be relied on as proof of guilt or evidence to establish that the defendant had committed the three offences he had been charged with, it may be nonetheless admissible as evidence for which the prosecution could use to rebut the defendant’s contention of an inadequate investigation done by the ESA, especially of the defendant’s claim that someone else did the electrical work on the three houses in question. And, if someone else had done the electrical work on those three houses instead of the defendant, as claimed by the defendant, then it is logical the defendant would know who that person is that supposedly did the electrical work, if it had not been the defendant, since the defendant had been hired by the three homeowners to do the renovation work on their respective houses and that it would have been the defendant who would have had to actually hire that person to do the electrical work for those three houses. And, as such, ESA Investigator Corbett’s testimony on the defendant’s refusal to answer questions along with what Corbett had learned from Steve Duff and Paublo Medina could be used by the prosecution to show that other people were indeed investigated besides the defendant, to rebut the defendant’s claim of an inadequate investigation. However, the same hearsay evidence could not be relied on as proof of the elements of the offence or proof that the defendant had indeed committed the three offences.

[180]Moreover, the “investigative hearsay” exception was considered in R. v. Spackman, [2012] O.J. No. 6127, in which Watt J.A., writing for the Court of Appeal for Ontario, noted that for the purpose and the risks behind a defence of inadequate investigation, which invokes the strategy of attacking the integrity of the police investigation, the accused would make relevant, material, and admissible, evidence that would never have seen the light of day if it had been

2018 ONCJ 640 (*)

tendered by the Crown as part of its case in-chief. Watt J.A. also emphasized that such evidence that may be made admissible is “investigative hearsay”:

The "defence" of inadequate investigation may be related to but can be discrete from a claim of third party authorship. The decision by an accused to attack the integrity of the police investigation of the offence charged is a permitted, but risky strategy. The risk involved is that, by invoking the strategy, the accused will make relevant, material, and admissible, evidence that would never have seen the light of day if tendered by the Crown as part of its case in-chief: R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.), at para. 51; and R. v. Mallory, 2007 ONCA 46 at para. 87. Included among the evidence that may be made admissible is investigative hearsay, albeit subject to instructions about its limited use: Dhillon, at para. 51; Mallory, at para. 92; R. v. Starr, 2000 SCC 40 at para. 184; and R. v. Van, 2009 SCC 22 at para. 33. To deny the Crown the right to adduce evidence to rebut a claim of inadequate investigation, as with the "defence" of third party authorship, would be to leave an entirely distorted and incomplete picture with the jury.

[181]Also, in respect to an allegation of inadequate investigation raised by the defence, the Court of Appeal for Ontario in R. v. Dhillon, [2002] O.J. No. 2775, at paras. 46, 48, and 51, held that the Crown must be given a fair opportunity to rebut the defence allegation of inadequate investigation and that the Crown may be entitled to lead “hearsay” evidence of the police investigation where the trial judge is of the opinion that the probative value of the proposed evidence outweighs its prejudicial effect and the jury would be instructed on its limited use. In addition, the Court of Appeal also indicated that the Crown as part of its rebuttal may be able to lead otherwise inadmissible evidence of an accused's antecedents if that evidence is relevant to the adequacy of the investigation [emphasis is mine below]:

This is not the proper case to decide when, if ever, the defence should be permitted to introduce investigative hearsay evidence to support an allegation that the police investigation of other leads was inadequate. Where, however, as here, the defence asserts an inadequate police investigation and the trial judge admits this type of evidence, the Crown must be given a fair opportunity to rebut the defence allegation. Therefore, the Crown may be entitled to lead hearsay evidence of the police investigation to rebut a defence allegation that the investigation was inadequate where the trial judge is of the opinion that the probative value of the proposed evidence outweighs its prejudicial effect and the jury is instructed on its limited use. Indeed, the Crown may be able to lead otherwise inadmissible evidence of an accused's antecedents if that evidence is relevant to the adequacy of the investigation. Evidence of an accused's antecedents may be relevant where the police eliminated other possible suspects because of the strength of the case against the accused.

This bad character evidence so permeated the trial that we doubt that any jury instruction could have relieved against its prejudicial effects. We are at least satisfied that this jury instruction did not do so. Admittedly the trial judge did

2018 ONCJ 640 (*)

instruct the jury on the difference between evidence admissible for the truth of its contents and hearsay evidence, which is not admissible for the truth of its contents, and which therefore could be used only to assess the adequacy of the police investigation. And the trial judge did so not just in his charge to the jury but at various points during the trial.

We conclude this part of our reasons with some general observations about investigative hearsay evidence led to address a defence contention of an inadequate police investigation.

(a)The risks of an accused advancing this kind of defence are all too apparent.

(b)If an accused intends to claim that a police investigation was inadequate, it may well be safest for the trial judge to conduct a full voir dire before ruling. In a voir dire, the trial judge can more precisely balance the probative value and prejudicial effect of the proposed evidence and need not rely on counsel's broad representations about the evidence. Moreover, the accused's decision about whether to pursue this line of questioning can then be made with fuller information about its potential impact.

(c)If the defence seeks to cast doubt on the adequacy of the investigation of other possible suspects, in principle we see no reason why the Crown is necessarily precluded from leading evidence about the police investigation of the accused, provided that evidence is relevant to the adequacy of the investigation. With limited resources, police decisions about investigating other suspects may well depend on their knowledge of the accused and his activities.

(d)If evidence of the police investigation is admissible and is pursued, its limited use must be made clear to the jury. See R. v. Starr, [2000] 2 S.C.R. 144 at para. 184. In the course of instructing the jury on the permissible uses of this evidence, the trial judge would be wise to highlight specifically those parts of the investigation that would otherwise be inadmissible as either hearsay or police opinion.

[182]And, in regards to the defendant’s specific concern or complaint that the prosecution has failed to call or summons certain witnesses, Goldstein J. held, at para. 32, of R. v. Papasotiriou-Lanteigne, [2018] O.J. No. 3116 (Ont. S.C.), that the Crown has no obligation to call witnesses that have no material evidence to give [emphasis is mine below]:

I note that Mr. Ivezic has complained consistently that the Crown has failed to call the TPS officers he deems necessary for his defence. The Crown has no obligation to call witnesses that have no material evidence to give. As Watt J.A. stated at para. 108 of Spackman:

2018 ONCJ 640 (*)

The disclosure obligations of the Crown do not require the production of witnesses for discovery, for example by calling them as witnesses at a preliminary inquiry: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 23; R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Nor does an accused have a constitutional right, as an incident of the right to make full answer and defence or otherwise, to an adequate police investigation of the crime with which she or he is charged: R. v. Darwish, 2010 ONCA 124, (2010), 103 O.R. (3d) 561, at para. 29; R. v. Barnes, 2009 ONCA 432, at para. 1. Further, an accused has no constitutional right to direct the conduct of a police investigation of which she or he is the target or, through a disguised disclosure demand, conscript the police to undertake investigatory work for him or her: Darwish, at para. 30; R. v. Schmidt, 2001 BCCA 3, 151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. On the other hand, the police and Crown should give serious consideration to investigative requests made on behalf of an accused: Darwish, at para. 30. That said, it is the prosecutorial authorities, not the defence, that bear the ultimate responsibility for determining the course of the investigation: Darwish, at para. 30.

[183]Alas, in applying the relevant legal principles in respect to the consideration of hearsay evidence adduced by the prosecutor and the use of out-of-court statements repeated in the trial for some other reason, but not for its truth, and in light of the defendant’s trial being a non-jury trial of a strict liability regulatory offence, then any evidence that would be proof of an essential element of the offence that is based on an out-of-court statement being used for the truth of its contents, which is not admissible under a traditional exception or admissible under the principled exception based on necessity and reliability, will be disabused and given no weight by the trier. However, the hearsay evidence from ESA Investigator Gary Corbett as it is relevant to the issue of inadequate investigation and where its probative value is not exceeded by its prejudicial effect will be considered on that issue of adequacy, but not for the truth of its contents or as proof of the essential elements of the offence.

[184]Moreover, much of ESA Investigator Gary Corbett’s testimony had been in the nature of hearsay evidence. In particular, Corbett’s testimony about Paublo Medina’s role in the renovation of 22 Vespahills Crescent, Brampton and 291 Boon Avenue, Toronto, would have been inadmissible hearsay if it was being used by the prosecutor for its truth. Although Corbett had explained why Paublo Medina could not appear to testify because of Medina’s health and hospitalization and possible leg amputation, the prosecution never specifically sought the admissibility of what Medina had stated to Corbett out of court for the truth of its contents, as a principled exception to the hearsay rule based on necessity and reliability. Even if the prosecution had, that evidence would not have met the reliability factor, and as such, cannot be used or relied on for its truth.

[185]Furthermore, the impugned hearsay evidence elicited from ESA Investigator Gary Corbett’s, which had been from conversations with Paublo Medina and Steve Duff, was not being used for its truth that the defendant had done the electrical work at 291 Boon Avenue, that the defendant had been operating an electrical contracting business, or that the defendant had not been licenced to be an electrician or an

2018 ONCJ 640 (*)

electrical contractor in Ontario. The proof for those facts to be proven, which form the key elements of the offence for the charge in count #2, had already come from other evidence. However, the hearsay evidence in respect to ESA Investigator Gary Corbett’s conversations with Paublo Medina and Steve Duff would only be considered and weighed in respect to the defendant’s claim of an inadequate investigation.

[186]In addition, the hearsay evidence in Ahmed Khan's testimony and narrative in respect to Khan's understanding that the defendant was not an electrician, but a car electrician, and Khan’s information about the defendant that he had received from Paublo Medina about the requirement for a permit for electrical work would be relevant and admissible to explain Ahmed Khan’s state of mind of why Khan had contacted the ESA to enquire about whether an electrical permit had been taken out on 291 Boon Avenue and why Khan had informed the ESA that the electrical work may have been done by an unlicenced electrician. However, this particular testimony from Ahmed Khan is not being used for its truth as proof of the elements of the offence that the defendant was not properly licenced, but only for the purpose of Khan’s narrative, and also, as properly admissible evidence in respect to Khan’s state of mind on why he had contacted the ESA about the existence of a permit for 291 Boon Avenue, Toronto.

[187]Moreover, with respect to the hearsay evidence from Ahmed Khan about what

Ahmed Khan’s lawyer had told Khan about the defendant not having any assets is also narrative, as well as evidence that Ahmed Khan is not using the ESA charges for the purpose of obtaining damages in a civil law suit against the defendant.

[188]On the other hand, ESA Investigator Gary Corbett also testified that he had charged both Steve Duff and Steve Duff’s company Wiztronic Inc. for “operating an electrical contracting business without holding a valid electrical contractor licence” and that Steve Duff as a director and officer of Wiztronic Inc. had entered a guilty plea on behalf of Wiztronic Inc. to that charge, while the charge against Steve Duff personally had been withdrawn by the prosecution. However, the evidence that proves that Steve Duff was not a licenced electrical contractor had already been adduced through the testimony of Scott Eason, an ESA Project Specialist in the Electrical Contractors Registration Agency of the ESA. Therefore, Corbett’s testimony on whether Steve Duff had been licenced as an electrical contractor is not being relied upon for its truth, but as evidence of whether Corbett had done an adequate investigation into the charges that the defendant had been charged with, since the defendant had questioned Corbett on the adequacy of Corbett’s investigation and also on whether Corbett had believed the veracity of the three homeowner’s claims against the defendant.

[189]In addition, ESA Investigator Corbett’s testimony on the outcome of Steve Duff’s charges would also be for the purpose of narrative on Steve Duff’s involvement in doing electrical work at 291 Boon Avenue, Toronto and why Steve Duff and his company had been charged by Corbett, and that consequently, Steve Duff’s

2018 ONCJ 640 (*)

company had been convicted. Furthermore, Corbett’s testimony would also be reliable as Corbett had testified to attending the courtroom where Steve Duff had resolved the ESA charges for both Duff and Duff’s company, Wiztronic Inc., with a guilty plea by Wiztronic Inc.

[190]As well, ESA Investigator Corbett’s testimony in respect to Steve Duff would have also be relevant to the defendant’s inquiry of why Steve Duff had not been subpoenaed to be a witness in the trial. Moreover, Steve Duff’s testimony would have been relevant to both the prosecution’s efforts to prove who did the electrical work at 291 Boon Avenue and also to the defendant’s contention that the defendant did not do the electrical work, even though Ahmed Khan had testified to having observed the defendant doing electrical work at 291 Boon Avenue at a time before Steve Duff had been brought in by the defendant to assist the defendant in doing the electrical work. Ergo, since ESA Investigator Corbett’s evidence with regards to Steve Duff and his company Wiztronic Inc. being charged for their involvement in doing electrical work at 291 Boon Avenue is relevant to the issue of inadequate investigation, then the probative value of Corbett’s evidence does exceed its prejudicial effect.

[191]In addition, the defendant contends ESA Investigator Corbett had also improperly provided hearsay evidence on what Paublo Medina had told Corbett about the defendant no longer using Paublo Medina anymore on the 291 Boon Avenue job and that the defendant also did not pay Medina the money that the defendant had owed to Medina, which would inappropriately show the defendant to be of bad character. However, the prosecution submits that Medina’s relationship with the defendant is relevant, since the defendant had raised the issue of Medina’s involvement in the conspiracy against the defendant. It is also relevant to the issue of why Medina has not been called as a witness on account of Medina’s health, which is a reason why Medina may not be able to appear in the trial as a witness. Again, Corbett’s testimony on Paublo Medina’s relationship with the defendant and why Paublo Medina is not being called or available as a witness is relevant to the issues of the defendant’s inadequate investigation claim and the defendant’s contention that the prosecution witnesses all know each and are colluding against the defendant, and as such, ESA Investigator Corbett’s testimony consisting of hearsay evidence in respect to the inadequacy of the investigation claim is not improper or impermissible.

[192]Hence, the prosecution could rely on a hearsay account by ESA Investigator Gary

Corbett as “investigative hearsay” to prove that Corbett’s investigation had not been inadequate and that Corbett had indeed contacted both Steve Duff and Paublo Medina and had investigated both Steve Duff’s and Paublo Medina’s involvement with 291 Boon Avenue and with the homeowner Ahmed Khan. This hearsay evidence from Investigator Corbett would also be relevant to whether Corbett had reasonable and probable grounds to charge the defendant.

[193]As well, since the prosecutor’s actions of eliciting hearsay evidence is an evidentiary issue, the defendant’s concern about the prejudicial effect of irrelevant

2018 ONCJ 640 (*)

prejudicial hearsay evidence is lessened because this is a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law on the admissibility and use of hearsay evidence, and that any irrelevant prejudicial hearsay evidence that shows bad character or is intended to be used for its truth as proof of an essential element of the offence can be disabused and given no weight, and that such evidence would not be used as proof of any of the elements of the offence, nor would it be used improperly as proof of guilt.

[194]Therefore, the prosecutor’s use of hearsay evidence would not be used for the truth of its contents, but for the purposes of narrative, to rebut a claim of inadequate investigation, or to respond to a query of why Steve Duff and Paublo Medina had not been subpoenaed by the prosecution; and as such, would not have been prosecutorial conduct that would have prejudiced the fairness of the trial or prejudiced the integrity of the judicial process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

b)The prosecutor had elicited lay opinion evidence from the ESA Investigator

[195]In respect to the claim that the prosecutor had improperly elicited opinion evidence, the defendant submits that on numerous occasions, the prosecutor had elicited lay opinion evidence from Gary Corbett, the ESA investigator, who had not been called as an expert witness for the prosecution. In one particular instance, the defendant submits that the prosecutor had inappropriately asked ESA Investigator Corbett whether the defendant had been telling the truth.

[196]Furthermore, the defendant contends that the prosecutor also elicited lay opinion evidence from ESA Investigator Corbett when the defendant had called Corbett as his first defence witness, and in the prosecutor’s cross-examination of Corbett as a defence witness, the prosecutor had elicited Corbett’s opinion on the nature of Steve Duff’s and the defendant’s involvement with Ahmed Khan and the renovation of 291 Boon Avenue, Toronto, in which ESA Investigator Corbett had opined that the defendant had been involved in a “scam operation” with Steve Duff, explaining that the defendant and Duff had been playing Ahmed Khan, the owner of the property, in order to get more money out of Khan, by having Khan hire Steve Duff to correct the electrical work that the defendant had already done in the house.

[197]In response to the question of whether the prosecutor had improperly elicited opinion evidence from ESA Investigator Corbett on the veracity of the defendants testimony, the prosecution submits that the defendant had put his own credibility in issue when the defendant had asked Corbett if Corbett had doubted what the defendant had been telling Corbett during Corbett’s investigation. Specifically, the prosecution submits that it had actually been the defendant who had cross- examined Corbett first on whether Corbett doubted the things that the defendant

2018 ONCJ 640 (*)

had said in regards to the defendant denying that he did any of the electrical work at the three houses and that the homeowners were all liars and ganging up on him, and as such, the prosecution contends that the defendant had put his own credibility in issue, so that the prosecution was then entitled to re-examine Corbett on that issue.

[198]However, at the point when the defendant had first raised that issue, the court had suggested to the defendant that the defendant probably did not want that question to be answered by ESA Investigator Corbett, in which the prosecutor then stated to the court that, “I’d like to hear the answer”. Despite the court’s suggestion to the defendant, the defendant still wanted ESA Investigator Corbett to answer the question, and as such, Corbett was allowed to answer the defendant’s question on whether Corbett believed the defendant’s denial that he did not do any of the electrical work and that the homeowners were all liars and ganging up on the defendant. To the defendant’s question, ESA Investigator Corbett had actually answered that Corbett had reasonable and probable grounds to lay the charges and that it would be up to the court to determine if the defendant had committed the charges. Subsequently, the prosecutor then re-examined Corbett on that issue and had elicited Corbett’s opinion that the defendant’s statement denying that he did the electrical work that had been made to Corbett during Corbett’s investigation did not have merit and that Corbett had believed that the defendant had done the electrical work on all three houses and that is why Corbett had laid the charges. In addition, Corbett said that through the information that Corbett had gathered, Corbett also believed the defendant had been dishonest with all three homeowners.

[199]For the admissibility of lay opinion evidence, Paciocco and Steusser emphasized in their textbook, The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), at p. 183, that even for lay witnesses, the general exclusionary rule disallowing opinion evidence is often not applied and that the line between ‘fact’ and ‘opinion’ is not clear. Moreover, Paciocco and Steusser explained that lay witnesses may present their relevant observations in the form of opinions where

(1) they are in a better position than the trier of fact to form the conclusion; (2) the conclusion is one that persons of ordinary experience are able to make; (3) the witness, although not an expert, has the experiential capacity to make the conclusion; and (4) the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions [emphasis is mine below]:

Lay witnesses may present their relevant observations in the form of opinions where

they are in a better position than the trier of fact to form the conclusion;

the conclusion is one that persons of ordinary experience are able to make;

2018 ONCJ 640 (*)

the witness, although not expert, has the experiential capacity to make the conclusion; and

the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions.

Even for lay witnesses, the general exclusionary rule disallowing opinion evidence is often not applied. This is because the stark dichotomy between fact and opinion that is presupposed by the general rule is unrealistic. As Dickson J. said in Graat v. R.: “Except for the sake of convenience there is little, if any, virtue in any distinction resting on the tenuous and frequently false antithesis between ‘fact’ and ‘opinion.’ The line between ‘fact’ and ‘opinion’ is not clear.” For example, when a witness identifies the driver of the vehicle by pointing her out in court, he is stating as a fact that she is the driver. Yet, in a real sense he is offering his opinion that the person in court is the same person who was driving the vehicle. Numerous apparent statements of fact are arguably no more than expressions of opinion; things like age, height, weight, the identification of people or things, the speed of vehicles, distance, whether someone is happy or angry, all call for judgment to be made about what has been observed and for conclusions to be drawn. Obviously, it is common for witnesses to testify about such things. The fact is that lay witnesses do offer opinions.

[200]Furthermore, in R. v. Jenkins, [2018] O.J. No. 965 (Ont. S.C.), at paras. 10, and 28 to 31, Edwards J., who had been presiding in a jury trial, had to decide whether the lay opinion evidence of police officers that the accused was involved in drug trafficking, which had been based on what the officers had observed, should be excluded or admissible as lay opinion evidence. Edwards J., in that case, had concluded that even a lay person might have also concluded based on what the police officers had observed of the accused’s interactions with people for short periods of time were indeed drug transactions, or that the lay person could have also concluded that the accused’s interactions with people were entirely innocent in nature and had nothing to do with trafficking in drugs, but that it would be the jury’s issue to decide. However, Edwards J. also reasoned that the evidence of the surveillance police officers would be helpful to the trier of fact in terms of assisting the jury to understand what was being observed. As such, Edwards J. concluded that the evidence of the police officers had amounted to a belief that what they saw was a drug transaction between the accused and his customer, but that the police officer’s belief does not become a fact until the trier of fact concludes, with all of the evidence heard, that in fact the accused was trafficking in drugs [emphasis is mine below]:

The Crown relies on a decision of the Supreme Court of Canada, R. v. Graat, [1982] 2 S.C.R. 819, in support of her argument that the surveillance evidence of the various police officers and their belief that they were observing a drug transaction between Jenkins and his customers, was the expression of a lay opinion that did not require the evidence of a properly qualified expert. Defence counsel argues in reliance on R. v. Sekhon, 2014 SCC 15, that the evidence of the various police officers who expressed their belief that they thought Jenkins

2018 ONCJ 640 (*)

was trafficking in drugs was an expression of an opinion. None of the officers had provided any expert report and none of the officers were qualified as an expert. As such, the defence argues the opinion evidence of these police officers should be ruled inadmissible.

The evidence proffered by the police officers conducting surveillance on Jenkins between November 2016 and January 20, 2017 was not anecdotal in nature. They made observations and drew a conclusion from those observations that Jenkins was trafficking in drugs. The type of lay opinion that they were expressing was, at least in part, informed from their years of experience in investigating drug offence in the City of Barrie. It is the type of lay opinion that any lay person with no experience in the drug world might also reach, given the number of times Jenkins was seen interacting with people for relatively brief periods of time. A lay person might also conclude that Jenkins interactions were entirely innocent in nature and had nothing to do with trafficking in drugs. That will be an issue the jury will have to decide.

The evidence of the surveillance police officers will be helpful to the trier of fact in terms of assisting the jury understand what was being observed. The evidence of the officers amounts to a belief that what they saw was a drug transaction between Jenkins and his customer. That belief does not become a fact until the trier of fact concludes, with all of the evidence heard, that in fact Jenkins was trafficking in drugs.

The categories of cases where a lay person can express an opinion is not closed. As the cases which I have reviewed make clear, this court has a discretion to admit the evidence of the surveillance officers. The admission of this evidence was not a surprise to the defence. Its admission at the time it was tendered could not have been seen as prejudicial either, as no objection was taken to any of the officers expressing their belief as to what they saw and what they took from those observations. If a police officer can offer a lay opinion that the scene of a crime appeared to have been cleaned up (see Ilina), I fail to see how the lay opinion at issue in this case is materially different.

For these reasons the defence motion to exclude the evidence of the surveillance officers, as it relates to their lay opinion that what they observed was Jenkins conducting a drug transaction, is dismissed.

[201]Therefore, in considering and applying the relevant legal principles on the admissibility and use of lay opinion evidence, when the defendant had asked ESA Investigator Corbett if Corbett in general had doubted the defendant’s denial that he did not do any of the electrical work at the three houses and that everyone was a liar and that they were all ganging up on him, Corbett had been careful to only provide Corbett’s opinion that there existed reasonable and probable grounds to lay the charges after his investigation, but not his personal opinion on the defendant’s guilt, which Corbett acknowledged belong to the court. Furthermore, even when the prosecutor elicited further testimony from Corbett in response to the defendant’s initial question to Corbett about Corbett’s belief about the defendant’s denial, Corbett had opined that the defendant’s statement of denial to

2018 ONCJ 640 (*)

Corbett did not have merit. In that respect, Corbett’s opinion that the defendant’s denial did not have any merit would have been an investigative conclusion made by Corbett in regards to Corbett’s decision to lay the charges against the defendant. Moreover, because the defendant had also claimed that there had been an inadequate investigation, ESA Investigator Corbett’s opinion that Corbett had reasonable and probable grounds to believe that the defendant had done the electrical work at the three houses is rebuttal evidence to the inadequate investigation claim, and would therefore, be a conclusion that persons of ordinary experience would be able to make.

[202]However, even if ESA Investigator Corbett’s responses could be viewed as

Corbett’s opinion on the defendant’s honesty or credibility, it is still the trier’s ultimate decision on whether the defendant had committed the three charges and on the credibility of witnesses and what inferences to make from the evidence and what weight to attach to the evidence. But more important, ESA Investigator

Corbett’s opinion would not carry any weight in those decisions, nor would Corbett’s opinion be used improperly as proof of guilt.

[203]Furthermore, in regards to ESA Investigator Corbett’s opinion that the defendant had been involved in a “scam operation” with Steve Duff in relation to Ahmed

Khan, the owner of 291 Boon Avenue, to get more money out of Khan, by informing Khan that the electrical work had been done improperly in the basement of Khan’s house and that Khan had to pay Steve Duff extra money to correct the defendant’s electrical work done in the basement and to complete the electrical work in the house would have been ESA Investigator Corbett’s opinion based on his experience as a police officer and as an investigator for the ESA and from evidence that he collected in his investigation.

[204]On the other hand, ESA Investigator Corbett’s opinion that the defendant and Duff had “scammed” Ahmed Khan is not evidence or proof that the trier can properly use or rely on as evidence which establishes any of the elements of the offence of

“operating an electrical contracting business without holding a valid electrical contractor licence”. Therefore, in the context of a non-jury trial, ESA Investigator Corbett’s opinions can be disabused and given no weight, nor would they be used improperly as proof of guilt or as character evidence that shows the defendant is a dishonest person.

[205]But more important, the trier would not have had to rely on ESA Investigator Corbett’s opinion on the nature of the transaction between the defendant and Steve Duff with Ahmed Khan, since the trier could have reached the same conclusion or inference on the testimony and evidence of Ahmed Khan in respect to the circumstances surrounding the appearance of Steve Duff; Duff’s relationship with the defendant; Khan observing both the defendant and Duff doing electrical work together; and the reasons for Ahmed Khan hiring Duff separately after Khan lost touch or contact with the defendant in December of 2012, that the transaction with Steve Duff was possibly not above-board. However, without Steve Duff’s

2018 ONCJ 640 (*)

testimony, such an inference or finding that the defendant and Steve Duff had schemed to scam Ahmed Khan cannot be made in this particular case. Therefore, ESA Investigator Corbett’s opinion that the defendant and Steve Duff had pulled a scam will be disabused and will not carry any weight, nor will it be used improperly as proof of the defendant’s guilt.

[206]Furthermore, even though the prosecutor would be permitted to use ESA Investigator Corbett’s opinion as rebuttal evidence to a claim of inadequate investigation, the opinion evidence that related to what the ESA Investigator Corbett believed about the defendant’s denials, and who Corbett had believed did the electrical work at the three houses, and that the defendant had been dishonest with the three homeowners, and that Steve Duff and the defendant had been doing some sort of “scam” or “sham” on the homeowner of 291 Boon Avenue, is still not credible evidence that can be relied on as prove beyond a reasonable doubt of the elements of the three offences that the defendant had been charged with. And, just because ESA Investigator Corbett had reasonable and probable grounds to believe the defendant did the electrical work at the three houses from his investigation in order to charge the defendant, Corbett’s opinion is not evidence that proves that the defendant actually did the electrical work, since Corbett did not personally see the defendant doing the electrical work, nor did the defendant admit to the ESA Investigator Corbett that he had been the person that did the electrical work. As such, the prosecution would still need to adduce evidence that the defendant had done the electrical work on the three houses in order to prove beyond a reasonable doubt that the defendant had committed the offence of

“operating an electrical contracting business without holding a valid electrical contractor licence”.

[207]Therefore, although ESA Investigator Corbett’s opinion of who did the electrical work is not proof that the defendant actually did the electrical work, it is still admissible as evidence that can be used to rebut the defendant’s claim of an inadequate investigation and as part of the narrative as to why charges where laid against the defendant that is based on the experience of someone who investigates complaints, gathers information, collects evidence, and interviews witnesses, for the purposes of concluding that there had been reasonable and probable grounds that the defendant had contravened a regulation of the Electricity Act, 1998, and in why ESA Investigator Corbett had formed the opinion of who actually did the electrical work in the three houses.

[208]In addition, ESA Investigator Corbett’s belief of who did the electrical work on the three houses and whether the defendant’s denials are believable and Corbett’s belief that Steve Duff and the defendant had together scammed the homeowner of 291 Boon Avenue, Toronto, in the context of a non-jury trial, can be ignored and disabused by the trier as evidence or proof of who the person or persons were that had actually did the electrical work at the three houses.

2018 ONCJ 640 (*)

[209]But more importantly, in context, as the consideration of opinion evidence is an evidentiary issue, the defendant’s concern about the prejudicial effect of lay opinion evidence is lessened as this was a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and would also be able to disabuse and give no weight to the impugned lay opinion evidence or to use it improperly as proof of guilt.

[210]Therefore, the prosecutor’s conduct in eliciting lay opinion evidence used to rebut a claim of inadequate investigation had not been improper prosecutorial conduct, which had caused an unfair trial nor did it prejudiced the integrity of the judicial process, that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(iii)The prosecutor had elicited or had presented irrelevant bad character evidence

[211]The defendant also submits that the prosecutor had elicited or had presented irrelevant bad character evidence, which included evidence on the defendant’s deviant lifestyle and criminal or quasi-criminal associations, and on the defendant’s financial and HST practices, and therefore, had acted improperly since this bad character evidence would inadmissible since it is irrelevant to proving the key elements of the three charges and it shows the defendant to be of bad character.

[212]In particular, the defendant submits that the irrelevant bad character evidence consisted of evidence adduced on the on-line search results made by Ahmed Khan’s lawyer that the defendant did not own any property; evidence on whether the foundation work at 291 Boon Avenue, Toronto was performed properly; evidence on whether the defendant gave receipts to the homeowners for cash payments made by the homeowners; evidence on the defendant informing Razeka Bacchus that the defendant could double Bacchus’s money through the defendant’s friends who are employed in banking; evidence on whether the defendant had been a long-time friend of Steve Duff who the defendant knew growing up; evidence that Steve Duff’s company Wiztronic Inc. had been convicted of “operating an electrical contracting business without holding a valid electrical contractor licence”; evidence on whether the defendant owed money to Paublo Medina and to other people; evidence on whether the defendant declared income or had attempted to evade paying taxes; and evidence on whether the defendant’s business was a sham or scam.

[213]Furthermore, the defendant submits that such evidence is irrelevant to the charges before the court and for legitimate credibility impeachment, but more importantly, the defendant contends that this irrelevant character evidence tends to paint the defendant in an unflattering light as someone with bad character and a deviant lifestyle.

2018 ONCJ 640 (*)

[214]In reply to the contention that the prosecutor had improperly elicited irrelevant bad character evidence, the prosecution submits that the impugned evidence had pertained to the activities and circumstances surrounding the agreements between the defendant and the three homeowners, and as such, were relevant to the case. In particular, the prosecution submits that since the defendant had differentiated between the electrical work and the other construction work and that the defendant claims that he did not do the electrical work in the three houses, despite the evidence to the contrary; and that the defendant also claims that he did the other renovation work but then offered various excuses for not finishing the three jobs, and in doing so, blamed the homeowners; and as such, the prosecution submits that the prosecution was entitled to probe and challenge the credibility of the defendant on issues such as the standard of the work, the payment for the work, and the defendant’s relationships with Steve Duff and Paublo Medina, who had been involved with two of the homeowners.

[215]In Paciocco and Steusser’s textbook, The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), at pp. 52 to 54, Paciocco and Steusser indicate evidence that the accused has engaged in extraneous discreditable or criminal acts or is otherwise of a discreditable character is presumptively inadmissible. Moreover, Paciocco and Steusser noted that evidence that does no more than invite the general inference that the accused is the kind of person to commit the offence would not be admitted. In addition, Paciocco and Steusser emphasized that in assessing the risk of prejudice caused by the evidence, consideration should be given to such things as “moral prejudice,” being the risk that the evidence would be used to draw the prohibited inference that the accused is the kind of bad person likely to commit the offence charged, and “reasoning prejudice,” which includes the risk that the trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence; that the trier of fact may become confused about what evidence pertains to the crime charged and what evidence relates to the alleged similar act; that the trial would begin to focus disproportionately on whether the similar act happened; and that the accused would be unable to respond to the allegation that the similar act occurred because of the passage of time, surprise, or the collateral nature of the inquiry [emphasis is mine below]:

Evidence that the accused has engaged in discreditable or criminal acts, or is otherwise of a discreditable character is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

In assessing the probative value of the evidence, consideration should be given to such things as:

(1)the strength of the evidence that the discreditable or criminal act occurred;

2018 ONCJ 640 (*)

(2)the connection between the accused and the similar act event, and

(3)the extent to which the discreditable or criminal act supports the inferences sought to be made, relating to a specific issue in the case

(a.k.a. the “connectedness” of the evidence to the “questions in issue”); and

(4)the extent to which the matters it tends to prove are at issue in the proceedings (the materiality of the evidence).

In assessing the risk of prejudice caused by the evidence, consideration should be given to such things as:

“moral prejudice,” being the risk that the evidence will be used to draw the prohibited inference that the accused is the kind of bad person likely to commit the offence charged; and

“reasoning prejudice,” which includes the risk that:

-the trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence;

-the trier of fact may become confused about what evidence pertains to the crime charged, and what evidence relates to the alleged similar act;

-the trial will begin to focus disproportionately on whether the similar act happened; and

-the accused will be unable to respond to the allegation that the similar act occurred, because of the passage of time, surprise, or the collateral nature of the inquiry.

If this rule is applied properly as a strict rule of admissibility, evidence that does no more than invite the general inference that the accused is the kind of person to commit the offence will not be admitted. This rule is designed to avoid such general inferences, as they are “prohibited” by law. Even when evidence disclosing the discreditable character of the accused is admitted to support other proper, specific inferences, it is only to be used for those inferences, and not to draw the prohibited general inference.

As stated by the Supreme Court of Canada, “[i]t is trite law that ‘character evidence [called by the Crown] which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible.’” Moreover, even where it logically follows it is impermissible to infer from admissible evidence that the accused may be guilty because he is the kind of

2018 ONCJ 640 (*)

person who would commit the offence. This “prohibited inference” has been described as a “primary rule of exclusion,” “one of the most deeply rooted and jealously guarded principles of our criminal law.” Hence, it is not permissible in a burglary trial to prove that, because he has a history of burglary, the accused is the kind of person likely to have committed the burglary in question.

Justice Binnie explained why the prohibited inference exists in the unanimous Supreme Court of Canada decision in R. v. Handy, now the leading Canadian case on character evidence: Proof of general disposition is a prohibited purpose. Bad character is not an offence known to law. Discreditable disposition or character evidence at large, creates nothing but “moral prejudice” and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person. This is not to say that general disposition or general character is entirely without relevance. Surely it is easier to believe an allegation that the accused committed a burglary, knowing that, because he has committed burglaries before, he is the kind of person who would do so. Yet the relevance of this general character evidence is modest when it comes to resolving whether the accused committed the particular burglary alleged. More importantly, relying on inferences arising from general disposition or general character is dangerous. It is apt to add more heat than light. It may cause the trier of fact to convict, not because of the natural strength of the kind of evidence, but as a reaction to the discreditable, contemptible, or stigmatizing character of the accused. For these reasons, in spite of its modest relevance, evidence that does no more than invite the prohibited inference is inadmissible.

[216]Furthermore, in R. v. G.(S.G.), [1997] S.C.J. No. 70 (S.C.C.), at paras. 63 to 65, Cory J. reiterated that character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible, except in three general situations: (1) where the evidence is relevant to an issue in the case; (2) where the accused puts their character in issue; and (3) where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility in which bad character evidence can be admitted [emphasis is mine below]:

It is trite law that "character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible" (emphasis in original): see for example Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 201-2; R. v. B. (F.F.), [1993] 1 S.C.R. 697, at p. 730. However, there are three general exceptions under which evidence of bad character of the accused can be adduced:

(1)where the evidence is relevant to an issue in the case: see, for example, Morris, supra, at p. 202; B. (F.F.), supra, at p. 731. See also R. v. Lepage, [1995] 1 S.C.R. 654, at pp. 672-74; R. v. Hinchey, [1996] 3 S.C.R. 1128, at para. 135, per Cory J.

(2)where the accused puts her character in issue: see, for example, R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), at p. 352, leave to appeal granted on other grounds (1981), 56 C.C.C. (2d) 576 (S.C.C.);

2018 ONCJ 640 (*)

(3)where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility: see, for example, Lucas v. The Queen, [1963] 1 C.C.C. 1 (S.C.C.); R. v. Chambers, [1990] 2 S.C.R. 1293.

In my view, the evidence of bad character of the accused in the instant appeal was admissible as relevant to significant issues in the case, and it is therefore unnecessary to consider whether it might also have been properly admitted under the other two exceptions to the exclusionary rule.

Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity or means: see R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey, supra, at para. 135. Evidence of motive, for example, is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, [1979] 2 S.C.R. 821.

Evidence which is directly relevant to the Crown's theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect: B. (F.F.), supra, at p. 731. Even if evidence is admissible under this exception, it is clear that it still cannot be used to determine guilt simply on the basis that the accused is the type of person to commit the crime: B. (F.F.), supra. The trial judge has a duty to charge the jury in this regard, and to warn them against the improper use of the evidence.

[217]In addition, Cory J. held, at paras. 66 to 73, in R. v. G.(S.G.), that once evidence of bad character is adduced where it would be relevant to an issue in the case, it can properly be used in assessing the general credibility of the accused. However, Cory J. emphasized that as long as the evidence is not used for the purpose of finding guilt on the basis of the accused's alleged propensity to commit the crime, the jury can take the bad character evidence into account in assessing the accused's testimonial trustworthiness [emphasis is mine below]:

The appellant argues that a trier of fact cannot use such evidence to assess the general credibility of the accused by inferring from the bad character of the accused that she is not likely to tell the truth. I cannot accept that contention. Once evidence of bad character is adduced because it is relevant to an issue in the case, it can properly be used in assessing the general credibility of the accused. As long as the evidence is not used for the purpose of finding guilt on the basis of the accused's alleged propensity to commit the crime, the jury can take the evidence into account in assessing the accused's testimonial trustworthiness.

In Davison, supra, Martin J.A. stated at pp. 441-42 that:

An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule. As a witness, however, his

2018 ONCJ 640 (*)

credibility is subject to attack. If the position of an accused who gives evidence is assimilated in every respect to that of an ordinary witness he is not protected against cross-examination with respect to discreditable conduct and associations.

. . .

In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross-examined on the issue of his credibility. In this area of the law, as in so many areas, a balance has been struck between competing interests. . . .

In that case, it was concluded that the accused could not be directly cross- examined on his bad character solely to show that he as a person is not likely to tell the truth.

In R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), at p. 565, Martin J.A. explained his reasoning in Davison in this manner:

That case stands for the proposition that, subject to the exceptions . . . an accused may not be cross-examined as to previous bad conduct and disreputable associations for the purpose of leading to the conclusion that by reason of his bad character (disposition) the accused is not testimonially trustworthy. It does not, however, hold that where evidence of the accused's bad character is properly before the jury it cannot be used in assessing his credibility.

Martin J.A. wisely concluded that, where evidence of bad character is properly admissible under one of the exceptions -- such as where it is relevant to an issue in the case -- it can be used as a basis for the inference that the accused's general credibility is questionable. It may not be conclusive on this point, but it is a factor that the trier of fact can take into account in assessing the reliability of the accused's evidence. This approach is eminently sound and reasonable.

Policy dictates that evidence introduced for the sole purpose of demonstrating propensity should be ruled inadmissible because of the potential prejudice to the accused. Yet it is clear that these policy reasons do not weigh so heavily that the evidence cannot be admitted when it is relevant to an issue presented in the case: see for example Morris, supra; B. (F.F.), supra. In those circumstances, it has been sensibly held that juries can be trusted not to use such evidence for the impermissible purpose of determining guilt on the basis of propensity alone, so long as proper instructions are given in this regard: R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 693-94.

To require a jury to compartmentalize its thinking even further than this would be artificial and unnecessarily convoluted. It is a matter of common sense that evidence of bad character may reflect badly on the accused's credibility, and that the jury can use it as a factor in determining if the accused is likely to be telling the truth. This is not the same thing as suggesting that the accused is guilty because she is a bad person, or may have a disposition to commit the type of crime for which she is charged.

2018 ONCJ 640 (*)

In R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 612, McLachlin J. made the eminently sound observation that:

The idea that a complainant's credibility might be affected by whether she has had other sexual experience is today universally discredited. There is no logical or practical link between a woman's sexual reputation and whether she is a truthful witness.

Read in isolation, this statement might be taken to suggest that there is never a logical connection between the bad character of a witness and the credibility of that witness. It must be remembered, however, that the position advanced in Seaboyer, supra, addressed the highly prejudicial use of evidence of sexual reputation in the context of a sexual assault complaint. There is indeed no logical link between a woman's sexual reputation and whether she is a truthful witness. That comment does not stand for the proposition that evidence of bad character cannot in any circumstances be logically probative on the issue of credibility. It does not hold that where evidence of bad character is properly before the jury, it cannot be used in assessing credibility. This is the position taken by Martin J.A. in Hogan, supra, and I agree with his conclusion.

The trier of fact will consider all the evidence before it in assessing the general credibility of witnesses, including the accused. A judge sitting alone or a jury has the opportunity to observe demeanour, to hear the testimony of the witnesses and to assess all the evidence presented. All of this will be taken into account in assessing the credibility of the accused, or any other witness. Testimony as to bad character will not be the only evidence that is relevant to credibility. It may be contradicted by the accused's demeanour, or by other evidence supporting the accused. It will simply be one factor among many that will lead the trier of fact to form an impression as to the truthfulness of the accused. Provided an appropriate direction is given, it does not materially increase the risk that the accused will be convicted on the basis of her disposition, rather than for committing the acts that are the subject of the charge.

As long as evidence of bad character is properly before the jury on an issue in the case, and its prejudicial effect is outweighed by its probative value, then a jury should not be prevented from using the evidence to assess the credibility of the accused.

[218]Furthermore, McLachlin C.J. held in R. v. G.(S.G.), at para. 100, that the inquiry into prejudice is focused not on the effect the evidence may have on the outcome of the trial, but on its effect on the accused's right to make full answer and defence. Accordingly, McLachlin C.J. noted that the question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly [emphasis is mine below]:

"Prejudice", for the purposes of this inquiry, is used in the legal, procedural sense. The fact that the evidence tendered may be powerful evidence for the prosecution does not lead to a conclusion of prejudice. The inquiry into prejudice focuses not on the effect the evidence may have on the outcome of the trial, but on its effect on the accused's right to make full answer and defence. The

2018 ONCJ 640 (*)

question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly. The just or fair trial is one which gets at the truth, while respecting the fundamental right of the accused to make full answer and defence.

[219]In applying the relevant legal principles in regards to the admissibility of character evidence, the impugned bad character evidence in this case is relevant in respect to the renovation work agreed to between the defendant and the three homeowners and the circumstances surrounding the agreements, and in the relationship between the defendant and the respective three homeowners, and in why the three homeowners had hired the defendant, since the defendant had differentiated between the electrical work and the other construction work and because the defendant claims that he did not do the electrical work at the three houses. Moreover, the defendant claims that he had done the other renovation work, but not the electrical work, and then had offered various excuses for not finishing the three jobs because of the fault of the three homeowners. In addition, besides this impugned bad character evidence being relevant to an issue in this case, the defendant had also put his character and credibility at issue.

[220]Ergo, the prosecution did not improperly adduce irrelevant bad character evidence, as this particular evidence was directly related to the nature of the relationships between the defendant and the three homeowners, the circumstances surrounding how and why the homeowners agreed to hire the defendant for the renovation work on their respective houses, the nature of the agreements between the homeowners and the defendant, the nature of how the homeowners paid the defendant for the renovation work, the nature of how the defendant had completed the renovation jobs he had been hired to do, the nature of how the defendant conducted his business affairs with the homeowners, as well as the relationships between the defendant with Steve Duff and with Paublo Medina, who had both been involved in the 291 Boon Avenue, Toronto renovation, while Paublo Medina had also been involved in doing the plans for 22 Vespahills Crescent, Brampton.

[221]In addition, even if the impugned evidence had not been relevant evidence which also showed the defendant to be of bad character, and had been irrelevant bad character evidence, the use of bad character evidence is an evidentiary issue, and the defendant’s concern about the prejudicial effect of irrelevant bad character evidence is lessened because this is a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and any irrelevant prejudicial bad character evidence can be disabused and given no weight, nor would such evidence be used improperly as proof of guilt.

[222]As such, the prosecutor’s actions in eliciting relevant evidence which may also show bad character is not improper, and is therefore, not prosecutorial conduct that had prejudiced the defendant’s right to a fair trial, nor did it prejudice the

2018 ONCJ 640 (*)

integrity of the justice process that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(iv)The prosecutor gave evidence

[223]The defendant further submits that the prosecutor had improperly given testimony in the trial. That specific testimony had referred to whether a company named “Winmar” was an insurance company, an insurance adjuster, or a restoration company. Specifically, during the defendant’s testimony, the prosecutor had informed the court that his co-counsel had just Googled “Winmar” and that Winmar was actually a restoration company working for an insurance company, to clarify the court’s question to the defendant on whether “Winmar” was an insurance company or an insurance adjuster.

[224]This question arose when the defendant, in trying to discredit the testimony of Razeka Bacchus, the homeowner of 94 Narrow Valley Crescent, Brampton, had been testifying about a company named “Winmar” who did an estimate of the cost to repair Razeka Bacchus’s house, in which he defendant had stated: “Winmar was a company that went out and did the estimate” at Ms. Bacchus’ house. The prosecutor then asked the defendant, “Just to be clear, and Winmar is the insurance company?”, to which the defendant responded, “Winmar is a contractor, authorized contractor for the insurance company.” The court had then asked the defendant, “Are they the adjustor? Sorry, are they the adjustor?”, to which the defendant responded, “They’re not the adjustor but what they do, the insurance company hire these people to go out and assess the damage and send a copy of the assessment to the insurance company and they gave me a copy of that.”

[225]The prosecutor then provided his own evidence about the company that had been referred to by the defendant as “Winmar”, “Yeah, I don’t think Winmar, the insurance adjustor, they’re – I’ve used Winmar in my own home for their clean-up crew or they can help do repairs, but I… don’t think that they’re – not to give evidence, but anybody I think just has to look up on the internet and see what

Winmar is, they’re not insurance adjustors…” The prosecutor then informed the court that his colleague Mr. Wright, “just happened to be – looked up Winmar for me and I just looked at the website and I encourage you to do so, but it says they’re a restoration company.”

[226]The prosecutor then submitted, “I can only take so much of so much, but at a certain point, he’s now attesting to an insurance policy, you know…. And I realize it’s weight, but it’s also these people have already come here and testified, I hate to inconvenience anybody to come back after all the inconvenience you say they’ve been through, but if this witness has knowledge of who he’s got and he goes home tonight and puts on those glasses that he left at home and he can – if he’d be kind enough to read those information he has from that insurance adjustor

2018 ONCJ 640 (*)

and maybe have the insurance adjustor come here or provide the information that insurance adjustor. Because that’s very different than a restoration company and it’s just – tough to sit here and listen to this.”

[227]In response to the defendant’s contention that the prosecutor in giving evidence on the nature of what “Winmar” does had been prosecutorial misconduct, the prosecution submits that it was entirely proper for the prosecution to bring some clarity to the issue of the nature of what Winmar did, since the issue of Winmar had been introduced by the defendant and goes directly to the defendant’s credibility because the defendant had first referred to Winmar as an insurance adjustor and then later referred to Winmar as an restoration company. Moreover, the prosecution submitted that the issue about what the company named “Winmar” actually does is relevant, since Winmar’s estimation for the cost of repairing Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton, appears to have formed part of the defence case in which the defendant is suggesting that the electrical work was not part of the work order from the insurance company for repairing Bacchus’s house.

[228]In R. v. Deslauriers, [1992] M.J. No. 502 (Man. C.A.), Twaddle J.A. confirmed that it is a long-established rule that a lawyer should not be both counsel and a witness in a case. However, Twaddle J.A. noted that the rigour of this rule is sometimes relaxed where the facts deposed to by counsel are non-controversial or where the interests of justice demand it, and that this relaxation is a concession to expediency and ordinarily permitted only where the lawyer's credibility will not be impeached and where neither his conduct nor judgment is questioned [emphasis is mine below]:

It is a long-established rule that a lawyer should not be both counsel and a witness in a case. Speaking on the Divisional Court's behalf following the hearing in R. v. secretary of State for India, [1941] 2 K.B. 169, Humphreys, J. said (at p. 175n):

"Before the court parts with this case, there is a short observation which the other members of the court desire me to make and with which I agree. It was brought to the attention of the court that, on the hearing at Bow Street police court, junior counsel on one side was called as a witness to prove certain aspects of Indian law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the other side.

We think it right to point out that this is irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as counsel and witness in the same case."

In Stanley v. Douglas, [1952] 1 S.C.R. 260, Cartwright, J. (as he then was) said (at p. 272):

"It must have been obvious at all times that the counsel in question was an essential witness and it was 'irregular and contrary to practice' -- to use the words of Humphreys J., concurred in by Singleton and Tucker, JJ. in Rex v. Secretary of State for India -- that he should act as counsel and witness in the same case."

2018 ONCJ 640 (*)

Although Cartwright, J. was in dissent on the substantive issue in that appeal, his view on the propriety of a lawyer acting both as counsel and as a witness was shared by Kerwin and Taschereau, JJ. (as they then were). Delivering a joint judgment, Kerwin, J said (at p. 269):

"I would add only that, without deciding whether such evidence would be admissible or not, on such new trial no one appearing as counsel for any party should give evidence."

The same point has been made in innumerable other cases decided in Canada and Manitoba in particular. Suffice that I refer to the decision of Williams, C.J.Q.B. in Gunther v. D. Cohn & Sons Limited (1956), 18 W.W.R. 569 at p. 573.

In my experience, this rule has been applied not only in cases where evidence is given viva voce, but also in cases where it is given by affidavit. This means that a lawyer should not appear as counsel on a motion where his affidavit is before the court. Nor should he appear on an appeal from an order made on that motion.

The rigour of this rule is sometimes relaxed where the facts deposed to by counsel are non-controversial or where the interests of justice demand it. This relaxation is, however, a concession to expediency, ordinarily permitted only where the lawyer's credibility will not be impeached and where neither his conduct nor judgment is questioned.

The scope of the rule is not limited to cases where counsel gives evidence directly. It extends to cases in which counsel relies on an affidavit sworn on the basis of information received from counsel, whether or not the affidavit expressly says so. My brother Philp recalls a case, heard last spring, in which this Court insisted that independent counsel be retained in such circumstances.

Counsel's objective role is also compromised in a case such as this where his own conduct or judgment has to be taken into account by the court in resolving an issue between the parties. Counsel ends up in these circumstances justifying his own conduct and judgment and attacking those of opposing counsel. This is a situation which should be avoided. Whenever possible, other counsel should be retained.

[229]Ergo, it is generally improper for counsel to give evidence during the trial, except where it may be related to procedural questions such as it relates to an issue on an adjournment application or related to an issue on the disclosure of evidence, or in respect to a fact that is non-controversial.

[230]On the other hand, the prosecutor in giving evidence that the company “Winmar” was not an insurance adjuster, but a restoration company that does repair work for insurance companies was in respect to a minor fact which was not an element of the offence that had to be proven. Moreover, it did not affect the defendant’s credibility as the defendant referred to Winmar as a company that “go in and assessed for the insurance company”, which could be the role of an insurance

2018 ONCJ 640 (*)

adjustor or a restoration company, and is a question of using the proper terminology for what Winmar does. In addition, this evidence was not central to an important issue that had to be decided and had been only a minor detail in the defendant’s narrative. And, in allowing this minor evidence to be provided by the prosecutor would have no bearing on whether the defendant had done the electrical work at 22 Narrow Valley Crescent, Brampton and whether the defendant been operating an electrical contracting business without holding a valid electrical contractor’s licence, nor would there be any negative inference in respect to the defendant’s credibility.

[231]Furthermore, the prosecutor’s action in giving evidence in the trial is an evidentiary issue, so that the defendant’s concern about the prejudicial effect of the prosecutor giving evidence on a minor fact is lessened because this is a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and any negative inferences in respect to the defendant’s credibility can be disabused and such evidence would not be used as proof of any of the elements of the offence, nor would it be used improperly as proof of guilt.

[232]Therefore, the prosecutor’s conduct in giving evidence on a minor non- controversial fact for purposes of clarification is not prosecutorial conduct that would have prejudiced the fairness of the trial, nor would it have prejudiced the integrity of the judicial process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(v)The prosecutor got the defendant to comment on the veracity of prosecution witnesses

[233]In addition, the defendant contends that the prosecutor had acted improperly in the cross-examination of the defendant when the prosecutor had asked the defendant to comment on the veracity of his accusers’ complaints made to the ESA investigator. As such, the defendant submits that it is improper and unfair to ask an accused person to either comment upon a complainant's credibility or to give an opinion that the accused was clearly not qualified to give or to provide an alternate explanation for the complainant's behaviour that was not premised on the accused’s guilt.

[234]In particular, the prosecutor’s questioning of the defendant had actually been on whether the prosecution witnesses were fabricating evidence:

Q.Let's, let's go back to this and let's go

back. The witnesses that testified on behalf of the prosecution were all of them fabricating evidence and different.

A.A lot of stuff that I've heard was a lot of

2018 ONCJ 640 (*)

fabrication, yes.

Q.Okay.

A.A lot of it.

Q.So a lot of the stuff. Is there anything that.

A.A lot of stuff that I've heard. I'm not

saying all of the information was fabricated,

Q. You've gone home and you thought about what they testified to. Was there anything, with respect to Shaun Smith, and the inspector said you wouldn't give him his name, was that a fabrication?

A.Mr. Shaun Smith was, was pretty cordial and

on the stand, but he said one thing that was not accurate. He said I wasn't -- I refused to give him electrician name. Meanwhile, none of that was discussed. So that part was not accurate.

Q.Mr. Corbett, Mr. Corbett here testified the

same thing that you, you wouldn't meet with him. Do you remember that? He testified to that. Was he also, in your, in your estimation not telling the truth?

[235]In response to the defendant’s contention that prosecutor had gotten the defendant to comment on the veracity of prosecution witnesses, the prosecution argues that it had been the defendant who had first raised the issue by asking ESA Investigator Gary Corbett in the defendant’s examination-in-chief of Corbett, if Corbett in general had doubted the things that the defendant had told Corbett, and as such the prosecutor was entitled to explore that issue with the defendant. Furthermore, the prosecution submits that the line of questions were not inappropriate, since the prosecutor had merely asked the defendant if the witnesses were fabricating evidence and had not specifically asked the defendant for the defendant’s opinion as to why those particular witnesses would fabricate evidence.

[236]In R. v. Henderson, [1999] O.J. No. 1216, at para. 15, Labrosse J.A., for the Court of Appeal for Ontario, held that Crown counsel's questioning of the accused had required the accused to provide an alternate explanation for the complainant's behaviour that was not premised on his guilt, which explanation would have required the accused to comment upon the complainant's credibility or to give an

2018 ONCJ 640 (*)

opinion that the accused was clearly not qualified to give and are questions that are improper and unfair [emphasis is mine below]:

Crown counsel's questioning required the appellant to provide an alternate explanation for the complainant's behaviour that was not premised on his guilt. Such an explanation would have required the appellant to either comment upon the complainant's credibility or to give an opinion that he was clearly not qualified to give, explaining why her conduct was inconsistent with someone who had been sexually assaulted. Clearly questions of this nature are improper and unfair. This Court has on numerous occasions disapproved of such questions: see, for instance, R. v. Vandenburge (1995), 96 C.C.C. (3d) 371 at 372-3 (Ont. C.A.).

[237]Furthermore, the Court of Appeal for Ontario in R. v. Vandenburge, [1995] O.J. No. 243, at paras. 5 to 7, held that cross-examination of the accused as to “why the complainant and her mother would lie about the incident” had been improper and unfair, since there is no onus on an accused person to explain away the complaints against him or her [emphasis is mine below]:

The appellant also raises as a further ground of appeal that the trial judge shifted the burden of proof to the appellant and required him to prove his innocence in allowing extensive cross-examination of the appellant as to why the complainant and her mother would lie about the incident. As stated in Khan, the absence of any reason to expect fabrication in the statement is a relevant consideration on the issue of reliability. However, the cross-examination of the appellant was clearly improper. Crown counsel before fairly conceded that the questions put to the appellant as to whether the complainant and her mother were mistaken or lying and why they might lie, were improper.

In R. v. S.(W.) (1994), 29 C.R. (4th) 143, Finlayson J.A., speaking for this court, stated:

The Crown on appeal conceded that it was improper for the Crown at trial to demand an explanation from the appellant as to why the complainant would make up what counsel referred to as "this horrendous lie". There is no onus on an accused person to explain away the complaints against him or her. The trial judge should have resolutely rejected this approach. Instead he implicitly adopted it.

These words, although spoken in different circumstances, are applicable to the present case.

The trial judge fell into the error of placing an onus on the appellant to explain why the complainant would lie and he compounded this error by making the lack of an explanation an important part of his reasons for convicting the appellant. We are unable to conclude, as urged by the Crown, that no prejudice resulted from the improper and unfair cross-examination of the appellant.

[238]Moreover, in R. v. Rose, [2001] O.J. No. 1150, at para. 27, Charron J.A., for the Court of Appeal for Ontario, emphasized that it is improper to call upon an accused

2018 ONCJ 640 (*)

to comment on the credibility of his accusers because questions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness' testimony and, as such, they undermine the presumption of innocence [emphasis is mine below]:

Further, this court has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers: see, for example, R. v. Cole, [1999] O.J. 1647 (Ont. C.A.); R. v. F. (A.) (1996), 30 O.R. (3d) 470 (C.A.): R. v. Masse (2000), 134 O.A.C. 79 (Ont. C.A.); R. v. Vardenberghe (1995), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. W.S. (1994), 90 C.C.C. (3d) 242 (Ont. C.A.). Crown counsel did this repeatedly during the course of the cross-examination. Questions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness' testimony and, as such, they undermine the presumption of innocence.

[239]Furthermore, in R. v. A.J.R. (1994), 20 O.R. (3d) 405 (Ont. C.A.), Dougherty J.A. indicated that Crown counsel asking the accused to comment on the veracity of Crown witnesses and to explain “why these witnesses had fabricated their evidence” is improper, and that with this line of improper questions, Crown counsel had been able to paint the accused as a callous accuser ready to charge virtually everyone [emphasis is mine below]:

Crown counsel also repeatedly called upon the appellant to comment on the veracity of Crown witnesses and to explain why these witnesses had fabricated their evidence. Crown counsel pursued this line of questioning in relation to at least four Crown witnesses. With respect to some of the witnesses, the questions were repeated at different points in the cross examination. For example, Crown counsel asked the appellant whether J. had "totally fabricated that evidence" and then asked him "why that little girl totally fabricated that evidence". After Crown counsel had put the appellant in the position of calling four of the Crown witnesses liars, the trial judge intervened and suggested that the questions were improper. Crown counsel returned to that form of questioning on at least one occasion following the trial judge's admonition.

The impropriety of these questions cannot be doubted and Crown counsel in this court acknowledged that they were improper: R. v. Daly, supra, at p. 76; R. v. Logiacco (1984), 11 C.C.C. (3d) 374 at p. 383, 2 O.A.C. 177 (C.A.). Crown counsel submitted that although the questions were improper, they caused no prejudice. She observed, quite accurately, that the defence implicitly involved an assertion that the Crown witnesses and, in particular, T., had concocted the allegations against the appellant.

The nature of the defence advanced will impact on the harm, if any, caused by this type of questioning: R. v. Yakeleya (1985), 20 C.C.C. (3d) 193 at p. 196, 14 C.R.R. 381 (Ont. C.A.). Despite the defence advanced, I cannot say that the repeated resort to this technique, whereby the appellant was placed in the position of accusing others, did not prejudice him in the eyes of the jury. By means of these improper questions, Crown counsel was able to paint

2018 ONCJ 640 (*)

the appellant as a callous accuser ready to charge virtually everyone, including a terrified, emotionally distraught young child, with deliberately fabricating evidence against him. These improper questions also forced the appellant to offer explanations for the allegedly false testimony offered by the Crown witnesses. In the case of J. and T., the explanations only served to open further fertile grounds for cross-examination.

[240]On the other hand, if it had been the defendant that had been trying to elicit that evidence on the veracity of a witness’s testimony then it would be permissible: R. v. Gonzague, [1983] O.J. No. 53; 4 C.C.C. (3d) 505 (Ont. C.A.), at paras. 21 to 24. Martin, J.A., for the Court of Appeal For Ontario, in R. v. Gonzague, had held that it would have been preferable if the trial judge would have allowed the defence to elicit the evidence from a defence witness on that witness’s opinion with respect to a particular prosecution’s witness’s lack of veracity [emphasis is mine below]:

The next ground of appeal was that the trial had erred in refusing to permit defence counsel to adduce the evidence of one Richard, a former employer of Charbonneau, to express his opinion with respect to Charbonneau's lack of veracity. The trial judge, in ruling that that evidence was inadmissible, held that where it is sought to impeach the credibility of a witness through the testimony of another witness that the first witness is not to be believed on oath, the impeaching witness was restricted to expressing his opinion on the basis of the general reputation of the witness sought to be impeached. The judge's ruling would appear to have been in accord with the long established practice in this Province. The late Dr. D. A. McRae, in his article on Evidence, vol. 7 C.E.D. (2nd ed.) at p. 364 states:

The rule in Ontario has long been that the witness called to impeach the credit of another is first to be asked "Do you know the reputation of the witness for truth and veracity in the community in which he resides?" Unless the answer is in the affirmative the witness cannot proceed further. If he answers "Yes", he is then to be asked "Is that reputation good or bad?" Unless he answers "Bad", he cannot proceed. If he answers "Bad", he may be asked "From that reputation, would you believe him on oath?" These and only these are the questions permitted to be asked in chief.

However, the English Court of Criminal Appeal in R. v. Gunewardene (1951), 35 Cr.App.R. 80, held that the impeaching witness is entitled in testifying to state that from his knowledge of the witness sought to be impeached he believes him to be unworthy of credit under oath and is not confined to expressing an opinion of the lack of veracity of the witness based upon the latter's general reputation (at p. 88). The Court in that case further held that a medical witness was not entitled to testify that a Crown witness suffered from mental defect or abnormality which made his evidence unreliable.

The judgment of the Court of Criminal Appeal in R. v. Gunewardene, supra, on the latter point, that is, as to the inadmissibility of the medical evidence, was overruled by the House of Lords in Toohey v. Metropolitan Police Commissioner (1964), 49 Cr.App.R. 148. Lord Pearce, however, approved of Gunewardene in relation to the right of a witness to express an opinion, based on his personal

2018 ONCJ 640 (*)

knowledge, that the witness sought to be impeached was not to be believed under oath. (p. 159-160)

Although the matter is not free from doubt, because of the views expressed by the House of Lords in Toohey v. Metropolitan Police Commissioner, supra, and in view of the opinion expressed by Professor Cross in his well-known work on Evidence, which was also quoted with approval in the Toohey case, we think it would have been preferable if the defence had been allowed to elicit the evidence which it desired. The evidence, in our view, however, had little weight and we would not, on this ground, have interfered with the verdict of the jury.

[241]But more importantly, in the present case, the defendant had suggested that the three homeowners had colluded against him and that everyone was lying and that the ESA had done an inadequate investigation, for which the prosecution is permitted to call evidence to rebut the defendant’s claims.

[242]Moreover, the defendant also submits that the prosecutor had improperly adduced into evidence what the defendant had said to ESA Investigator Gary Corbett without first determining its admissibility through a voir dire to determine the voluntariness of the statement. The prosecution in response to the defendant’s contention that a voir dire was required, submit that a voir dire to determine voluntariness was not required as the defendant’s statements to ESA Investigator

Corbett were not inculpatory statements, but exculpatory.

[243]Ergo, since the defendant did not provide an inculpatory statement to ESA Investigator Corbett, but an exculpatory statement that the defendant had denied doing any of the electrical work and that everyone had been lying and ganging up on the defendant, then a voir dire had not been required for determining the voluntariness of an inculpatory statement made by the defendant to Corbett. As well, the defendant’s exculpatory statements are also relevant to the defendant’s contention that there had been an inadequate investigation conducted by the ESA.

[244]In R. v. Trochym, [2007] S.C.J. No. 6, 2007 SCC 6, [2007] 1 SCR 239 (S.C.C.), at paras. 176 to 181, Bastarache J., in his dissent opinion on another issue, had explained that the right to cross-examination is a fundamental truth-seeking element of the criminal trial. Moreover, Bastarache J. acknowledged that effective cross-examination of an accused serves the truth-finding function as much as does effective cross-examination of a complainant. In addition, Bastarache J. noted that the right of cross-examination must therefore be jealously protected and broadly construed, but that it must not be abused. In addition, Bastarache J. held that counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. In addition, Bastarache J. held that while there is a long line of jurisprudence prohibiting the Crown from asking the accused to attest to the veracity of other witnesses, Bastarache J. sees nothing wrong with the tactic of asking the accused if he had

2018 ONCJ 640 (*)

agreed or disagreed with a prosecution’s witness’s testimony on a particular point of evidence which went to proving an element of the charge. In other words, Bastarache J. held that it would be permissible to put a set of facts to an accused and ask the accused to confirm whether they are accurate or not [emphasis is mine below]:

The right to cross-examination is a fundamental truth-seeking element of the criminal trial:

Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehoods, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed. [Emphasis in original.]

(R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5, at para. 1)

This Court has gone so far as to find the right to cross-examination constitutionally protected: R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 606-8.

While the majority of this Court's jurisprudence on the importance of the right to cross-examination focusses on its importance vis-à-vis the defence, its importance to the Crown should not be underestimated:

Crown counsel is entitled, indeed, in some cases expected, to conduct a vigorous cross-examination of an accused. Effective cross-examination of an accused serves the truth-finding function as much as does effective cross- examination of a complainant.

(R. v. R. (A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.), at p. 176)

The general rules regarding the proper conduct of cross-examinations were discussed by this Court in Lyttle, at para. 44:

The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused. Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. See R. v. Meddoui, [1991] 3 S.C.R. 320; R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.); R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.); Osolin, [[1993] 4 S.C.R. 595].

MacPherson J.A. did not find that Crown counsel's tone throughout cross- examination was patronizing, sarcastic, mocking or editorial. He noted that defence counsel only once objected during the cross-examination that the Crown's tone was "argumentative". Overall, he found the Crown cross- examination "detailed and vigorous" (para. 59). I agree.

Two separate concerns with the propriety of the Crown's cross-examination were raised in this case. First, with regard to the false alibi evidence, it is argued that the Crown should not put suggestions to the accused in cross-examination

2018 ONCJ 640 (*)

unless it has reasonable grounds for believing that the suggestions are true. This is contrary to this Court's position in Lyttle, where it was held that all that is needed in order to put a question to a witness on cross-examination is a "good faith basis" (see para. 47). This standard was described as follows:

In this context, a "good faith basis" is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer's role as an officer of the court: to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply [page327] in a manner that is calculated to mislead is in our view improper and prohibited.

(Lyttle, at para. 48)

In light of my comments above regarding the presence of independent evidence of concoction, I find that the Crown's cross-examination on this issue to have met this standard.

The second impropriety the Crown's cross-examination pointed to is the compilation of "the list". Crown counsel went through the evidence of many of the Crown witnesses who testified to points that were central to the Crown's case. Mr. Trochym was asked whether he disagreed with their evidence on these points. Crown counsel asked Mr. Trochym to write down the names of the witness he indicated disagreement with. There were 28 names in total on this list. Defence counsel did not object to the making of this list. He only asked that the physical list itself not be made an exhibit. The trial judge permitted the list, on the reassurance that it would not distract Mr. Trochym during the course of his cross- examination.

Like MacPherson J.A., I see nothing wrong with such a tactic. While there is a long line of jurisprudence prohibiting the Crown from asking the accused to attest to the veracity of other witnesses (see, for example: Markadonis v. The King, [1935] S.C.R. 657; R. v. Yakeleya (1985), 46 C.R. (3d) 282 (Ont. C.A.); R. (A.J.); R. v. W.J.M. (1995), 82 O.A.C. 130; and R. v. Ellard (2003), 172 C.C.C. (3d) 28, 2003 BCCA 68), this is quite different from putting a set of facts to an accused and asking him or her to confirm whether they are accurate or not (see S. Akhtar, "Improprieties in Cross-Examination" (2004), 15 C.R. (6th) 236). In R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.), at para. 12, the following exchange occurred between the Crown and the accused:

[245]In the present case, the prosecutor had only asked the defendant if a particular piece of evidence had been fabricated or not, which is permitted, and not whether the defendant had an explanation for why a particular witness would have fabricated that piece of evidence, which is not permitted.

2018 ONCJ 640 (*)

[246]In addition, even though the prosecution is generally not permitted to ask or question a witness to comment on the veracity of another witness, the prosecutor’s question of the defendant on whether a particular piece of evidence from a prosecution witness had been fabricated is permitted, since that line of inquiry was relevant and not unreasonable or improper, considering that the defendant had raised the issue that the ESA had not done an inadequate investigation, that the defendant had told ESA Investigator Corbett that he did not do any of the electrical work at the three houses in question, and that everyone was a liar and colluding against the defendant. As such, the prosecution was entitled to adduce evidence to rebut the defendant’s claim of an inadequate investigation and to cross-examine the defendant on why the defendant had believed the investigation had been inadequate.

[247]But more importantly, because the prosecutor had elicited evidence from the defendant on whether specific prosecution witnesses had fabricated particular evidence is an evidentiary issue, the defendant’s concern about the prejudicial effect of such evidence is lessened because this is a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and that any irrelevant prejudicial evidence can be disabused and such evidence would not be used as proof of any of the elements of the offence, nor would it be used improperly as proof of guilt.

[248]Therefore, the prosecutor’s questioning of the defendant on whether particular evidence had been fabricated is not prosecutorial conduct that had caused an unfair trial, nor did it cause prejudice to integrity of the judicial process, which would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(vi)The prosecutor had cross-examined or questioned the defendant about his relationship with his counsel and made suggestive commentary about the reasons why his legal representative may have stopped acting for the defendant

[249]The defendant also contends that the prosecutor had acted improperly by asking inappropriate questions of the defendant related to his legal representation, which the defendant also contends had evolved into improper and suggestive commentary by the prosecutor about the reasons why counsel might have stopped acting for the defendant:

“when this witness is indicating that his counsel has not – and I don’t think his counsel – I’m not sure what happened, but in any event, there’s a – there’s a couple of reasons and I’m sure you’re well aware, Your Worship, in terms of why counsel removed himself as counsel, or you know,

2018 ONCJ 640 (*)

continued to act.” “So did he stop representing you because you didn’t pay him? What, what happened with respect to that?” “Okay, and did you tell – did you tell your counsel that?”

[250]In addition, the defendant also pointed out that the prosecutor had specifically asked the defendant questions about his relationship with his previous counsel and when counsel had stopped acting for him. The defendant then stated to the court, “Your Honour, I’m still telling my friend here that the reason my counsel is not here is – he doesn’t believe why he’s not here. It could be for other reasons, that’s what he’s suggesting.”

[251]As such, the defendant submits that such questions in respect to the defendant’s legal representation were not only offensive and demeaning, but also irrelevant to the charges and had clearly violated solicitor-client privilege, and were therefore, improper.

[252]In response to the question of the prosecutor’s conduct in questioning the defendant about the relationship between the defendant with his previous legal representative, the prosecution submits that the issue arose in the context of a possible and anticipated adjournment application from the defendant and which had also been connected to the subject of what witnesses the defendant might want to call, and that it had been the defendant who had raised the issue about not being able to retain his previous legal representative for the trial as the defendant did not have any money to do so.

[253]The ambit of solicitor-client privilege has been summarized in Paciocco and Steusser’s textbook, The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), at pp. 223 and 228, in which Paciocco and Steusser had noted that solicitor-client privilege arises because lawyers have made themselves indispensable to the administration of justice and that without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. Moreover, Paciocco and Steusser emphasized that all privileges are created in the public interest and it is contrary to the effective administration of justice to use the privilege to shield criminal, fraudulent, or abusive misconduct. In addition, Paciocco and Steusser underscore that the privilege belongs to the client and is for the client and not the solicitor to waive, although the client may authorize his solicitor to disclose the information [emphasis is mine below]:

A communication between a solicitor and a client, of a confidential nature and related to the seeking, forming, or giving of legal advice, is privileged information.

There is no privilege for communications that are themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime or fraud.

2018 ONCJ 640 (*)

The privilege may also be overridden where it would result in the withholding of evidence that might enable an accused to establish his innocence, or where public safety is at risk.

Solicitor-client privilege arises because lawyers have made themselves indispensable to the administration of justice. The central rationale for according this privilege was stated by Justice Cory as follows: Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation, or to criminal charges. Family secrets, company secrets, personal foibles, and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step. The privilege belongs to the client and is for the client and not the solicitor to waive, although the client may authorize his solicitor to disclose the information. Trial judges are also called upon to ensure that lawyers, who disclose confidential communications, do so only with the express consent of the client. …

The Supreme Court of Canada in Blank v. Canada commented that privilege would not protect from disclosure evidence of abuse of process or “similar blameworthy conduct.” In the words of Justice Fish, a privilege “is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day.” This comment was made with respect to “litigation privilege”; however, in principle it would seem applicable to solicitor-client privilege as well. All privileges are created in the public interest and it is contrary to the effective administration of justice to use the privilege to shield criminal, fraudulent, or abusive misconduct. Applying this principle, in Dublin v. Montessori Jewish Day School the exception was recognized for claims involving intentional infliction of emotional harm. The “crime and fraud” exception was also extended by the High Court of Australia in Attorney-General (N.T.) v. Kearney to a case of abuse of process by the Northern Territory government. Essentially the government sought legal advice on how to thwart legitimate aboriginal land claims. Justice Gibbs observed that such a purpose ran counter to the public interest underlying the privilege in the first place. He stated:

It would be contrary to the public interest which the privilege is designed to secure — the better administration of justice — to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law.

...

2018 ONCJ 640 (*)

[254]In context, the defendant had only been asked by the prosecutor on whether he had retained legal representation, and if he did not, then what actual steps he had taken in retaining legal representation for the purposes in deciding whether the defendant’s trial should be adjourned in order that the defendant could retain legal representation, or for the determination of allowing sufficient time for counsel to appear on behalf of the defendant. No information was being sought of how much the defendant was paying his legal representative counsel. The information on whether there would be a legal representative who could appear within a reasonable time and be able to proceed in representing the defendant without causing unreasonable delay in the continuation of the trial was required in determining whether the defendant’s trial should be further delayed with an adjournment, since the defendant had already been delayed for over 26 months from the date the defendant was charged until the date the defendant’s trial actually commenced to hear evidence. For those 26 months of delay, much of the delay could be attributed to adjournments being granted for the defendant to retain legal representation.

[255]In addition, the comments by the prosecutor that the defendant’s previous legal representative could not represent the defendant at trial because the defendant could not afford to pay the legal representative was not an improper comment in respect to an adjournment application, as it was relevant to whether it would be reasonable whether the defendant had actually retained legal representation, since the defendant had previously informed the court that he could not afford to pay for legal representation.

[256]Moreover, the questions in respect to whether the defendant would be able to retain legal representation within a reasonable time also affected the amount of trial time that would be needed to be secured and set aside for the continuation of the trial, since a trial with a legal representative would sometimes not take up as much court time as one when an accused person is representing themselves. Hence, the calculation of the proper amount of court time that would be required if an adjournment is granted also involved determining how many witnesses the defendant was intending to call, so that the appropriate court time could be secured to accommodate the defence witnesses that could be called.

[257]Therefore, the prosecutor’s questioning of the defendant on whether he had retained legal representation, and if the defendant had not done so as of yet, then what steps or efforts had the defendant undertaken to retain legal representation had been pertinent to the issue of whether the prosecutor would consent or contest the defendant’s request for an adjournment of the trial, was justifiable and not improper conduct, considering the amount of delay that had already occurred prior to the commencement of the first day of trial.

[258]As such, the prosecutor’s inquiry did not violate solicitor-client privilege as the defendant was not asked to reveal any privileged communication, such as how

2018 ONCJ 640 (*)

much the defendant would be paying for the services of the legal representative or whether he would be doing a monthly payment plan for the retainer.

[259]Furthermore, in context, the present trial was a non-jury trial and any negative connotations on credibility or on the defendant’s character that could arise from the inquiries into whether the defendant had actually retained legal representation or the steps in doing so, was not on actual conversations between the defendant and his previous legal representative or any legal representative that the defendant was intending to retain, and would not therefore be used improperly to find guilt.

[260]Therefore, the prosecutor’s conduct in inquiring about whether the defendant had retained legal representation or on the defendant’s efforts in retaining legal representation in the context of an adjournment application, was not prosecutorial conduct that would have prejudiced the fairness of the trial, nor prejudice the integrity of the judicial process, which will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(vii)The prosecutor had attacked and inappropriately commented on the defendant’s lifestyle and associations with unsavory persons

[261]Furthermore, the defendant contends that the prosecutor had acted wrongly when the prosecutor had elicited irrelevant evidence in respect to the defendant’s lifestyle and on the defendant’s unsavoury associations, and then had improperly commented on the lifestyle of the defendant and the defendant’s association with unsavoury persons. For this contention, the defendant relies on the following: the prosecutor had elicited evidence in respect to the on-line search results of Ahmed

Khan’s lawyer that the defendant did not have any assets; the prosecutor had elicited evidence on whether the foundation work at Khan’s house had been performed properly; the prosecutor had elicited evidence from the defendant on whether the defendant gave receipts for cash payments; the prosecutor had elicited evidence on whether the defendant had promised to double Razeka

Bachhus’s money with real estate transactions using the defendant’s “friends” in banking; the prosecutor had elicited evidence on whether the defendant was a long-time friend of Steve Duff; the prosecutor had elicited evidence on whether Steve Duff had been convicted of committing a similar offence to that before the Court; the prosecutor had elicited evidence on whether the defendant had owed people money, such as Pablo Medina; the prosecutor had elicited evidence on whether the defendant declared income or attempted to evade taxes; and the prosecutor had elicited evidence on whether the defendant’s renovation business was a sham or scam.

[262]In addition, the defendant submits that this evidence elicited by the prosecutor is irrelevant to the charges before the court and tends to paint the defendant in an unflattering light.

2018 ONCJ 640 (*)

[263]In response to the defendant’s contention that the prosecutor had acted improperly by eliciting evidence on the defendant’s lifestyle and on the defendant’s unsavoury associations, the prosecution submits that this evidence was proper and relevant as in was in respect to the activities and circumstances surrounding the agreements between the defendant and the three homeowners, and as such, were relevant to the case, since the defendant had differentiated between the electrical work and the other construction work and that the defendant claims that he did not do the electrical work in the three houses, despite the evidence to the contrary. Moreover, the prosecution submits that the defendant had claimed that he did the other renovation work and then offered various excuses for not finishing the three jobs, and in doing so, blamed the homeowners. As such, the prosecution submits that the prosecution was entitled to probe and challenge the credibility of the defendant on issues such as the standard of the work, the payment for the work, and the defendant’s relationships with Steve Duff and Paublo Medina, who had been involved in the renovation jobs with two of the homeowners.

[264]In R. v. Chambers, [1990] S.C.J. No. 108 (S.C.C.), at paras. 39 to 42, Cory J. for the majority, held that the evidence which had shown the accused to have bad character is properly admitted as evidence going to the background of the conspiracy itself, as well as going to the association and relationships which existed among the co-conspirators. However, Cory J. also noted that if the accused conceded the issue of the accused’s involvement in the conspiracy, then the evidence to prove the accused’s involvement in the conspiracy could not be used to prove that issue and would only be admitted to establish the accused’s credibility. Furthermore, Cory J. clarified that when evidence of an accused's bad character is admitted into the trial, it should, as a general rule, only be considered on the issue of the accused's general credibility and not as a basis for determining guilt or innocence. Moreover, Cory J. confirmed that the evidence of bad character cannot be used by the trier of fact to conclude that the accused is a bad person, and therefore, more likely to have committed the offence that the accused is charged with [emphasis is mine below]:

The evidence called by the Crown consisted in large part of intercepted conversations between the appellant and the co-conspirators. Those conversations indicated that Chambers used drugs himself; that he committed adultery; that he was quite prepared to bribe the Attorney General of Panama in order to obtain the release of prisoners in Panama; and that if the bribery failed he would encourage his mistress Pocius to seduce the Attorney General to obtain the release of Barudin and Gonzalez. There was as well the cross- examination of Gonzalez and Chambers which suggested that the appellant had bribed Gonzalez to testify. The appellant concedes that this evidence was admissible as going to credibility. I would add that it may also have been properly admitted as evidence going to the background of the conspiracy itself as well as going to the association and relationships which existed among the co- conspirators. Nonetheless, the question remains whether the trial judge erred in failing to charge the jury as to the restricted use that they could make of that evidence.

2018 ONCJ 640 (*)

There can be no doubt that if evidence of an accused's bad character is admitted, it should as a general rule only be considered on the issue of the accused's general credibility and not as a basis for determining guilt or innocence. It follows that a jury should be instructed that they cannot use the evidence of bad character in order to conclude that the accused is a bad person and therefore more likely to have committed the offence charged. See, for example, R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.). In my view the trial judge ought to have given such instructions. However, in this case that failure does not constitute a reversible error.

It will be remembered that the appellant conceded that he appeared to be a member of the conspiracy. It would have appeared so to his co-conspirators or to a bystander listening to the conversations. Thus his position as an apparent conspirator was not in issue and the evidence of bad character could not go towards establishing his membership in the conspiracy. The evidence may have indicated that Chambers was not a pleasant person nor one likely to be put forward as an example of moral virtue. However, once Chambers conceded that he gave every outward appearance of entering into the conspiracy, then the evidence of bad character could not have been used to determine that issue.

The evidence thus could only have been used by the jury in considering the appellant's credibility. This was a permissible use of the evidence. It would certainly have been preferable if the jury had been instructed as to the limited use they could make of the evidence. However, in the particular circumstances of this case, namely that the appellant's credibility was the only issue at trial, no miscarriage of justice could have been occasioned by the failure to charge on this issue. Accordingly, this ground of appeal cannot be accepted.

[265]To reiterate, as Cory J. noted in R. v. G.(S.G.), [1997] S.C.J. No. 70 (S.C.C.), at paras. 63 to 65, character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible, except in three general situations: (1) where the evidence is relevant to an issue in the case; (2) where the accused puts their character in issue; and (3) where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility in which bad character evidence can be admitted.

[266]In applying the relevant legal principles on the admissibility and consideration of the evidence on the defendant’s lifestyle and unsavoury associations, this evidence which also shows the defendant’s potentially bad character, is relevant in respect to the renovation work agreed to between the defendant and the three homeowners and the circumstances surrounding the agreements, and in the relationship between the defendant and the respective three homeowners, and in why the three homeowners had hired the defendant, since the defendant had differentiated between the electrical work and the other construction work and because the defendant claims that he did not do the electrical work at the three houses. Moreover, the defendant claims that he had done the construction work, but not the electrical work, and then had offered various excuses for not finishing

2018 ONCJ 640 (*)

the three jobs because of the fault of the three homeowners. Moreover, besides this lifestyle and unsavoury associations evidence being relevant to an issue in this case, the defendant had also put his character and credibility at issue.

[267]As such, the prosecution did not improperly adduce irrelevant bad character evidence as this particular evidence was directly related to the nature of the relationships between the defendant and the three homeowners; the circumstances surrounding how and why the homeowners agreed to hire the defendant for the renovation work on their respective houses; the nature of the agreements between the homeowners and the defendant; the nature of how the homeowners paid the defendant for the renovation work; the nature of how the renovation jobs were completed by the defendant; the nature of how the defendant conducted his business affairs with the homeowners; as well as the relationships between the defendant with Steve Duff and with Paublo Medina, who had both been involved in the 291 Boon Avenue, Toronto renovation, while Paublo Medina had also been involved in doing the plans for 22 Vespahills Crescent, Brampton.

[268]In addition, even if the impugned evidence on the defendant’s lifestyle and association with unsavoury persons which also showed the defendant to be of bad character had not been relevant evidence, but had been irrelevant bad character evidence, the use of bad character evidence of the defendant’s life style and associations with unsavoury persons is an evidentiary issue, and the defendant’s concern about the prejudicial effect of irrelevant bad character evidence is lessened because this is a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and any irrelevant prejudicial bad character evidence can be disabused and given no weight, nor would such evidence be used improperly as proof of guilt.

[269]Consequently, the prosecutor’s conduct in adducing relevant evidence which also demonstrated the defendant’s lifestyle and associations with unsavoury persons, and which also inferred bad character, had not been improper or inappropriate, and therefore, is not prosecutorial conduct which has prejudiced the fairness of the trial, nor prejudiced the integrity of the judicial process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(viii)The prosecutor had inserted editorial commentary into his cross-examination of the defendant by providing his personal opinion about the merits of the case against the defendant, on the merits of the defendant’s defence, and on the credibility or veracity of the defendant’s testimony.

[270]Moreover, the defendant submits the prosecutor had also acted improperly when he gave his personal opinion on the merits of the case against the defendant and

2018 ONCJ 640 (*)

the merits of the defendant’s defence in an argument with the defendant by stating, “And I think at the end of the day, the witness is going – and when he makes submissions he’s gonna say it’s a conspiracy. I think that’s what’s gonna happen.”

[271]The defendant in response to the prosecutor’s comment, then responded: “No, that’s your opinion though.”

[272]The prosecutor then stated to the defendant, ”Well, no, I think that’s what – I think that’s what you’re gonna say, but… I think that’s sort of the evidence we’ve heard that they’re all lying. I think you’ve already indicated that they’re all lying. So, if they’re all lying, one would think that they’re all – there’s some reason they’re all lying, so.”

[273]The defendant then responded to the defendant’s statement, “Your Honour, you can understand that in – with the prosecutor, I’m already guilty. And I’m proving to the Court that he’s not right and that – what he’s saying is not correctly true.”

[274]In response to the defendant’s contention that the prosecutor had acted inappropriately by engaging in editorial commentary or giving a personal opinion on the merits of the case against the defendant and the merits of the defendant’s defence, the prosecution submits that the prosecutor had already made a number of appropriate objections to address the defendant’s testimony that had contained irrelevant evidence, hearsay evidence, and evidence that had contravened the Rule in Browne and Dunn. Therefore, the prosecution submits that the prosecutor’s comments about the merits of the defendant’s case and defences had not been improper, since the defendant had already provided testimony which had amounted to an allegation of a conspiracy among the prosecution witnesses, the ESA inspectors, and the ESA investigator, and the prosecutor had been only putting a description or label to the defence the defendant was putting forward.

[275]Cory J. for the majority of the Supreme Court in R. v. Chambers, [1990] S.C.J. No. 108 (S.C.C.), noted at paras. 33 and 34, that it was improper for Crown counsel to express a personal opinion as to the veracity of the witnesses, since the trier of fact has the exclusive province to make findings of fact and in the course of that function to assess the credibility of witnesses:

In his address to the jury, Crown counsel stated that the Crown only calls witnesses that, in the opinion of Crown counsel, can be relied upon to give truthful testimony. Further, he said that while the Crown can only call truth tellers, it is different for the defence.

The majority reasons in the Court of Appeal properly referred to this unfortunate remark as an "unfounded claim" and a "nonsensical assertion". There can be no doubt that it was improper for Crown counsel to express a personal opinion as to the veracity of the witnesses. It would have been preferable if the trial judge had so advised the jury. Yet, perfection in a charge can neither be expected nor

2018 ONCJ 640 (*)

required. In any event, the trial judge did instruct the jury that it was their exclusive province to make findings of fact and in the course of that function to assess the credibility of witnesses. This was sufficient to overcome the unfortunate statements of Crown counsel. This submission cannot be accepted.

[276]In applying the relevant legal principles to the editorial commentary or personal opinion of the prosecutor about the defendant’s potential defence being an allegation of a conspiracy among the prosecution witnesses and the ESA inspectors and investigators, at the time that they were made or had occurred in the trial, were out of place and unwarranted, but it had not been abusive, nor did it prevent the defendant from making full answer and defence. Moreover, the prosecutor’s comments and opinion about the defendant raising a conspiracy defence had not been whimsical or capricious, as the defendant had insinuated in the trial that one homeowner, Jay Jairam, had an inspector friend working at the ESA, as well as the defendant himself had expressly stated to ESA Investigator Corbett that everyone was lying and ganging up on him. Ergo, the prosecutor’s ill- timed comments or opinion did not cause a miscarriage of justice or prejudiced a fair trial.

[277]Furthermore, in context, the defendant’s concern about the prejudicial effect of the prosecutor’s unwarranted comments or opinion about the defendant’s case or in respect to a conspiracy defence, is lessened because this is a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and any prejudicial or unwarranted comments made by the prosecutor about the defendant’s case or defences can be disabused and given no weight, and that such unwarranted commentary or opinion from the prosecutor would not be used as proof of any of the elements of the offence, nor would it be used improperly as proof of guilt.

[278]Therefore, the prosecutor’s conduct in providing comments or opinion regarding the defendant’s case or in respect to a conspiracy defence was ill-timed and unwarranted, but not abusive or capricious. Accordingly, it is not prosecutorial conduct which has prejudiced the fairness of the trial, nor prejudiced the integrity of the judicial process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome

(ix)The prosecutor had used sarcastic and demeaning language when cross-examining the defendant

[279]The defendant also submits that the prosecutor had inappropriately made sarcastic comments or used insulting language during the trial when the defendant was unrepresented and that this demeaning tone had permeated the trial. Moreover, the defendant contends that those incidences included the following:

2018 ONCJ 640 (*)

(1)the prosecutor had commented, “we’re getting pictures…”, which the defendant submits as appearing to be a sarcastic comment;

(2)the prosecutor had mocked the defendant about forgetting his eyeglasses;

(3)the prosecutor had asked the defendant to explain a document or a cheque, with the added comment: “this’ll be good…”, which appeared to the defendant as an attempt by the prosecutor to demean and belittle the defendant’s testimony;

(4)the prosecutor had stated, “I would be delighted, tickled, elated” to cross examine defence witnesses, which to the defendant appeared to be sarcastic in tone;

(5)the prosecutor had stated, “I have a morbid curiosity” about the defence evidence, which appeared to the defendant to be a sarcastic comment;

(6)the prosecutor had suggested that the defendant accompany the investigator, Gary Corbett, on an overnight “stake-out” in an attempt to locate Steve Duff, which the defendant contends had an appearance of a sarcastic comment.

[280]In response to this contention that the prosecutor had acted inappropriately by using sarcastic and demeaning language when cross-examining the defendant, the prosecution submits that the defendant has taken individual comments of the prosecutor and strung those comments together in order to take those comments out of context and to colour their effect. In addition, the prosecution submits that some use of sarcasm in cross-examination for emphasis is not improper.

[281]In R. v. Boudreau, [2012] O.J. No. 5597 (Ont. C.A.), at paras. 16 to 19, the Ontario Court of Appeal considered sarcastic comments made by the prosecutor during closing argument in a “jury trial” and pointed out that while the Crown may argue its case forcefully, it must abstain from inflammatory rhetoric, demeaning commentary, and sarcasm. In addition, the Court of Appeal remarked that the Crown must not misstate the facts or the law, that the Crown must not invite the jury to engage in speculation, nor should the Crown give personal opinions about either the evidence or the veracity of a witness [emphasis is mine below]:

However, there are important and well-settled limits on Crown advocacy. While the Crown may argue its case forcefully, it must abstain from inflammatory rhetoric, demeaning commentary and sarcasm. The Crown must not misstate the facts or the law. The Crown must not invite the jury to engage in speculation or express personal opinions about either the evidence or the veracity of a witness: see Mallory, at para. 340.

2018 ONCJ 640 (*)

The appellant alleges that certain passages in the Crown closing address were sarcastic and inflammatory, included improper comments on the veracity of witnesses, and invited the jury to speculate about the evidence. He submits that these defects rendered the trial unfair.

We do not accept this submission. Crown counsel made a lengthy closing address at the conclusion of a 16-day trial in a double murder case. Arguably, some of Crown counsel's remarks, during a closing address that covers 120 pages of transcript and lasted over four hours, were sarcastic, appeared to express an opinion about the veracity of some witnesses' testimony, and could be construed as inviting the jury to speculate about certain matters.

However, the trial judge, on his own initiative, without any objection or request from defence counsel, decided to deliver an addendum to his jury charge. In his blunt and strongly-worded addendum, he identified and explicitly discussed several statements by Crown counsel that he considered fell into the realm of sarcasm and speculation. He also explicitly instructed the jury that counsel's opinion of witnesses was irrelevant. Defence counsel did not object to these corrections, or ask for anything more or different, or, importantly, seek a mistrial.

[282]Moreover, in R. v. Mallory, [2007] O.J. No. 236, at paras. 340 to 345, which had involved a “jury trial”, the Court of Appeal for Ontario held that the closing address is the proper forum for argument and that the Crown is certainly entitled to argue its case forcefully, but that the Crown should not engage in inflammatory rhetoric, de-meaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness. The Court of Appeal also recognized that in a protracted and hard fought trial with months of pre-trial proceedings and allegations of abuse of process, it may be difficult for the Crown to resist rhetorical excess, but that it still must resist doing so, even when provoked by what Crown counsel perceives to be obstructive and truculent behaviour by the defence [emphasis is mine below]:

The closing address is the proper forum for argument and the Crown is certainly entitled to argue its case forcefully. The Crown should not, however, engage in inflammatory rhetoric, de-meaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness: see R. v. Grover (1991), 67 C.C.C. (3d) 576 (S.C.C.), rev'g (1990), 56

C.C.C.(3d) 532 (Ont. C.A.); R. v. Romeo (1991), 62 C.C.C. (3d) 1 (S.C.C.), rev'g (1989), 47 C.C.C. (3d) 113 (N.B. C.A.); R. v. Munroe (1995), 96 C.C.C. (3d) 431 (Ont. C.A.), aff'd (1995), 102 C.C.C. (3d) 383 (S.C.C.).

In a protracted and hard fought trial such as this, one with months of pre-trial proceedings and allegations of abuse of process, it may be difficult for the Crown to resist rhetorical excess. But resist it must, even when provoked by what Crown counsel perceives to be obstructive and truculent behaviour by the defence.

In our view, the opening address of Crown counsel called for corrective action by the trial judge. Crown counsel was not content to follow the orthodox path and

2018 ONCJ 640 (*)

open by simply outlining for the benefit of the jury the case she intended to present. Regrettably, Crown counsel demeaned the position of the defence and the role of defence counsel, engaged in pre-emptive argument, undermined the presumption of innocence, and expressed her personal opinion as to the guilt of the appellants. Phrases such as "the glaring spotlight of guilt" and the reference to there being "no shadows of doubt to crawl behind, no dark corners to hide from the scrutiny of truth", and the suggestion that the defence would try to "seduce" the jury to ignore the evidence were plainly inappropriate and set an unfortunate tone for the balance of the trial.

We do not say that the trial judge necessarily erred by failing to declare a mistrial after the Crown opening. We agree with the Crown that it was within the discretion of the trial judge to conclude that the comments were not so egregious as to require a mistrial. On the other hand, it is our view that some corrective action was called for. The trial judge should, at a minimum, have admonished the overly aggressive trial Crown for violating the R. v. Boucher, supra, standard and instructed the jury to ignore the objectionable passages of the Crown's opening address. As we have already indicated, by anticipating and attempting to pre- empt the attack on the integrity of the investigation, the Crown set the trial of that issue off on the wrong course.

In her closing address the Crown again demeaned and denigrated the role of defence counsel, and, with considerable rhetorical flourish, portrayed the defence as deceptive and obstructionist, intent upon diverting the jury's attention from the truth. While it is not improper for the Crown to identify for the benefit of the jury defence arguments inviting speculation, Crown counsel's comments in this case were not in keeping with the standard outlined in R. v. Boucher, supra.

We recognize that there are many cases involving similar remarks, uncorrected by the trial judge, that have been found by this and other courts not to be fatal: see e.g. R. v. Baltrusaitis, supra; R. v. Clark (2004), 69 O.R. (3d) 321 (C.A.); R. v. Daly, supra. In view of the numerous other errors to which we have referred, it is not necessary for us to pronounce definitively upon the effect of the Crown's rhetorical excesses. Suffice it to say that we view the passages we have quoted from the Crown's opening and closing to have been inappropriate, and that in our view, at a minimum, the trial judge should have given a corrective instruction to redress the imbalance it created and to alleviate the risk that the jury might be improperly influenced.

[283]Furthermore, in R. v. Roberts, [2018] O.J. No. 2279, at paras. 119 to 124, Paciocco J.A., writing for the Court of Appeal for Ontario, held that even though the trial Crown had not achieved perfect professional restraint, the Crown's conduct in that case fell far short of causing a miscarriage of justice or prejudicing a fair trial. Moreover, Paciocco J.A. reiterated that Crown prosecutors are not simply advocates, but also ministers of justice, and are expected to press their position firmly and advance their position effectively, even with a degree of rhetorical passion, but must, however, temper their advocacy. In addition, Paciocco J.A. emphasized that Crown prosecutors are not to appeal to emotion by engaging in "inflammatory rhetoric, demeaning commentary or sarcasm", nor are

2018 ONCJ 640 (*)

they to corrupt the fair reach of evidence in their submissions by suggesting that there are inconsistencies when there are not. On the issue of using sarcasm, Paciocco J.A. noted that sarcasm does not make guilt more apparent, but it does diminish the dignity of court proceedings, and that using inflammatory language does not advance reasoning, but invites emotion instead [emphasis is mine below]:

Ms. Roberts takes issue with the manner in which the trial Crown conducted the case. She argues that the trial Crown unfairly manufactured an inconsistency about whether Ms. Roberts turned around at a private service road or an intersection, and engaged in sarcastic comments and inflammatory language when questioning Ms. Roberts. I agree that the trial Crown did not achieve perfect professional restraint, but I do not agree that a miscarriage of justice has occurred. I would dismiss this ground of appeal.

Canadian courts have repeatedly stressed that Crown prosecutors are not simply advocates; they are ministers of justice: R. v. Boucher (1954), [1955] S.C.R. 16. This may be trite, but it is important. Crown prosecutors are expected to press their position firmly and advance their position effectively, even with a degree of rhetorical passion: R. v. Khairi, 2015 ONCA 279, at para. 13; and R. v. Boudreau, 2012 ONCA 830, at para. 15, leave to appeal refused, [2013] S.C.C.A. No. 330. Crown prosecutors must, however, temper their advocacy. They are not to appeal to emotion by engaging in "inflammatory rhetoric, demeaning commentary or sarcasm": R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340 per curiam. Nor are they to corrupt the fair reach of evidence in their submissions by suggesting that there are inconsistencies when there are not.

The legal standard for appellate intervention, however, is not perfection, or even faithful comportment with the ethical obligations that mirror these and related rules. The question on an appeal is about effect, not performance. The crucial question is whether, in the context of the trial as a whole, breaches of the limits of proper prosecutorial advocacy have caused a substantial wrong or miscarriage of justice, including by prejudicing the right to a fair trial: R. v. Sarrazin, 2016 ONCA 714, at para. 57. In my view, the Crown's conduct in this case falls far short of causing a miscarriage of justice or prejudicing a fair trial.

There is nothing to the complaint about the unfair manufacture of an inconsistency relating to the intersection and the service road. The trial Crown was entitled to challenge Ms. Roberts' conception of what an intersection is, in order to develop the Crown theory that Ms. Roberts improved, for trial, her narrative about her decision to return to the gas station.

There is more to the sarcasm point. For example, the trial Crown challenged Ms. Roberts' explanation for leaving the bar when she did by asking: "Why do you have to leave at 10:30? You are adult." He suggested to her that her memory was unreliable because her memory "is that of a mind that at the time was drowning in alcohol". Over objection, he confronted Ms. Roberts with being "pissed" and "hammered", until the trial judge admonished him to be more "delicate".

2018 ONCJ 640 (*)

Sarcasm does not make guilt more apparent. What it does is diminish the dignity of court proceedings. Using inflammatory language does not advance reasoning. It invites emotion instead. It would have been better if the trial Crown's cross- examination of Ms. Roberts had been more tempered. This is not a record, however, on which the outcome of a trial should falter. There is no reasonable basis for apprehending that the result of the trial was influenced by the isolated impudent questions and comments that have been identified, or that the trial was or has resulted in a miscarriage of justice.

[284]Consequently, even though the prosecutor’s comments had a sarcastic and demeaning tone, these comments made to the defendant did not intimidate the defendant nor inhibit the defendant from testifying or presenting his defence. And since, this is not a jury trial and the trier in this case can disabuse its mind and be able to separate irrelevant submissions from relevant submissions, and to not base a decision on irrelevant comments, but on relevant and credible facts. However, the sarcastic language and demeaning tone used by the prosecutor does diminish the dignity of the proceedings, but it had not gone beyond aggressive to abusive, so that it would have caused the defendant to have an unfair trial. As such, the prosecutor’s unwarranted sarcastic comments can be disabused and ignored and not considered in deciding issues of credibility, nor would the prosecutor’s immoderate comments be used improperly as evidence of guilt. Moreover, the trier in determining whether the prosecution has proven beyond a reasonable doubt that the defendant has committed the three offences would be basing and relying on relevant and credible evidence to make that determination.

[285]Therefore, the prosecutor’s conduct in using sarcastic comments or demeaning language in the trial is not prosecutorial conduct that had prejudiced the defendant’s right to a fair trial, nor did it prejudice the integrity of the justice process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(x)The prosecutor had grilled the defendant on the witnesses he intended to call and his efforts to contact and get the witnesses to court and whether the defendant had brought any of the documents that the defendant said he had and which he had promised to bring

[286]In addition, the defendant contends that the prosecutor had improperly asked the defendant about which witnesses the defendant had intended to call, and when would they be called. As well, the defendant contends that the prosecutor had also improperly asked the defendant whether the defendant had brought any documents to court. These inquiries about defence witnesses and defence

2018 ONCJ 640 (*)

documents, submits the defendant, are inappropriate since it would violate the defendant’s right to silence.

[287]However, in context, the prosecution’s questions about whether the defendant was intending to call particular witnesses and whether the defendant had brought any documents with him to support his assertions of what others had said out of court, or what they did, were not improper or inappropriate. The prosecution had made a blanket objection to the defendant continually testifying about what others had said out of court for its truth and in asserting that prosecution witnesses were lying and had contradicted themselves when the defendant had not put questions in respect to those supposed contradictory statements to those prosecution witnesses while they were in the witness stand, which would have therefore violated the Rule in Browne and Dunn. Moreover, the defendant had also continually testified that he had documents that would support or prove what the defendant had testified about had been true and would bring those specific documents on the next day, but did not end up bringing those documents to court when he had promised that he would.

[288]Therefore, the prosecutor’s questioning of the defendant on what witnesses the defendant intended to call and also questioning the defendant on whether he had brought any documents to court were not inappropriate and did not violate the defendant’s right to silence, since the defendant had already asserted that particular people had made specific statements, or had provided him with certain information, and that he had particular documents that would prove what he had been asserting had been true. As such, these questions from the prosecutor were proper questions of the defendant to test the defendant’s credibility and his assertions.

[289]And, even if there is any prejudicial effect from the prosecutor’s questions about what defence witnesses would be called and whether defence documents had been brought to court, it would be lessened because this is a non-jury trial and the charges involve strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and any irrelevant prejudicial evidence can be disabused and given no weight, and that such evidence would not be used as proof of any of the elements of the offence, nor would it be used improperly as proof of guilt.

[290]Accordingly, the prosecutor’s conduct in respect of questioning the defendant about calling and specifying what witnesses he would call and whether he had brought particular documents had not been improper or inappropriate, and as such, this prosecutorial conduct had not prejudiced the fairness of the trial, nor prejudiced the integrity of the judicial process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

2018 ONCJ 640 (*)

(xi)The prosecutor had led evidence regarding the defendant’s failure to cooperate with the authorities, in particular the defendant’s refusal to speak with authorities, and the prosecutor had also cross- examined the defendant on his failure to assert his innocence when confronted by investigators

[291]The defendant also contends that the prosecutor had acted inappropriately when he led evidence on the defendant’s failure to cooperate with ESA Inspector Shaun Smith and the defendant’s refusal to speak with ESA Investigator Gary Corbett, which the defendant contends violates the defendant’s right to silence. Moreover, the defendant also contends that the prosecutor had improperly cross-examined the defendant on his failure to assert his innocence to ESA inspectors.

[292]In response to the appropriateness of the prosecutor adducing evidence of the defendant’s lack of cooperation or refusal to speak with the ESA, the prosecution submits that there is a duty to cooperate in the governing legislation and that the purpose of this line of inquiry had been only for sentencing purposes.

[293]This issue about adducing evidence of an accused not cooperating with the authorities has been considered by the Supreme Court of Canada in R. v. Noble, [1997] S.C.J. No. 40. In that case, Sopinka J., writing for the majority of the Supreme Court, held at paras. 69 to 78, that the fundamental rule about the use of silence to help establish guilt beyond a reasonable doubt is contrary to the rationale behind the right to silence has been stated countless times by courts of all levels, and that just as a person's words should not be conscripted and used against him or her by the state, it is equally inimical to the dignity of the accused, to use his or her silence to assist in grounding a belief in guilt beyond a reasonable doubt. And, that in order to respect the dignity of the accused, Sopinka J. held that the silence of the accused should not be used as a piece of evidence against him or her. However, Sopinka J. also commented on the existence of situations where the silence of the accused being used by the trier of fact may not offend the Charter. Sopinka J. said that for this exceptional situation it would occur in “a trial by judge alone” situation where the trial judge would be convinced of the guilt of the accused beyond a reasonable doubt, in which the silence of the accused may be referred to by the trial judge as evidence of the absence of an explanation which could raise a reasonable doubt, or as an indication by the trial judge that the trial judge need not speculate about possible defences that might have been offered by the accused had the accused testified. Sopinka J. then concluded that such treatment of the silence of the accused by the trial judge sitting without a jury does not offend either the right to silence or the presumption of innocence, since silence of the accused is not used as inculpatory evidence which would be contrary to the right to silence, but simply that it is not being used as exculpatory evidence [emphasis is mine below]:

While it is clear that the accused is neither a competent nor a compellable witness for the Crown, it is a separate question whether the silence of the

2018 ONCJ 640 (*)

accused at trial may be used against him in reaching a verdict. Specifically, if the trier of fact is otherwise not convinced of guilt beyond a reasonable doubt, may the silence of the accused at trial be treated as a distinct piece of evidence which the trier of fact may use to become convinced of guilt beyond a reasonable doubt? Put in other ways, may silence be placed on the evidentiary scales or may it be used as a "make-weight"? In my view, the answer to this question is found in two common law rights which were subsequently enshrined in the Charter: the right to silence and the presumption of innocence.

The Right to Silence

The right to silence existed in various forms in the common law. For example, the "confessions rule" excluded any confession that was not demonstrated to have been voluntary: Ibrahim v. The King, [1914] A.C. 599 (P.C.); the accused had a right to choose not to confess. The common law right to silence, while it still exists, was to some extent superseded in importance by the establishment of the right to silence in the Charter. The accused's non-compellability at trial is now constitutionally protected under s. 11(c), but there has also been recognition of a right to silence as a principle of fundamental justice in s. 7. R. v. Hebert, [1990] 2 S.C.R. 151, established that there is a right to silence under the Charter which is engaged when a person is subject to the coercive power of the state. This occurs upon arrest, charge or detention of the individual. It is at this point that an adversarial relationship is created between the state and the individual. In Hebert itself, it was held that the state could not trick a detained accused into making self-incriminating statements through the use of an undercover police officer eliciting information in the accused's cell. Once under the coercive power of the state, the accused's right to silence could only be waived by an informed decision of the accused; state trickery was unacceptable.

While Hebert confirmed the existence of the right to silence under s. 7, it remained unclear to what use the silence of the detainee could be put. That is, while the detainee had a right to silence on arrest or detention, could this silence later be used against the accused at trial as evidence of his or her guilt? R. v. Chambers, [1990] 2 S.C.R. 1293, settled the matter. In that case, in addressing the jury, Crown counsel treated the appellant's silence on his arrest as evidence of guilt. The trial judge neglected to instruct the jury to ignore the evidence of silence on arrest, despite requests from both Crown and defence counsel to do so. This Court held that such neglect constituted reversible error. Cory J., speaking for a majority of six judges, stated at p. 1316 that:

It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer's question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt.

In my view, Chambers assists in analyzing the proper use by the trier of fact of the accused's silence at trial. Cory J. indicated that it would severely undercut the pre-trial right to silence if pre-trial silence could be used against the accused. Similarly, in the present context, it would severely undercut the right to silence at trial, which is found in ss. 7 and 11(c) of the Charter, if the silence could be used

2018 ONCJ 640 (*)

against the accused to convince the trier of fact of guilt. If the case against the accused does not otherwise prove guilt beyond a reasonable doubt, to permit the trier of fact to reach a guilty verdict on the basis of the failure to testify would significantly undermine the right not to testify. As Cory J. stated in Chambers, it would be a "snare and a delusion" to grant the accused a right to remain silent at trial yet then proceed to use the silence to find him or her guilty.

While Chambers itself supports the conclusion that silence of the accused cannot be placed on the evidentiary scales, the underlying justification for the right to silence also supports such a conclusion. The justification for the right to silence was affirmed by the unanimous decision of this Court in R. v. Amway Corp.,

[1989] 1 S.C.R. 21, at p. 40. We stated:

Applying a purposive interpretation to s. 11(c), I am of the opinion that it was intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth. Although disagreement exists as to the basis of the principle against self-incrimination, in my view, this factor plays a dominant role.

In a similar vein, in the context of pre-trial silence, McLachlin J. for the majority in Hebert stated, at p. 181:

The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent. . . . In keeping with the approach inaugurated by the Charter, our courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.

I stated in Hebert, at p. 195, that:

However, it cannot be denied that, apart altogether from the privilege [against self-incrimination], the right to remain silent -- the right not to incriminate oneself with one's words -- is an integral element of our accusatorial and adversarial system of criminal justice. [Emphasis added.]

The right to silence is based on society's distaste for compelling a person to incriminate him- or herself with his or her own words. Following this reasoning, in my view the use of silence to help establish guilt beyond a reasonable doubt is contrary to the rationale behind the right to silence. Just as a person's words should not be conscripted and used against him or her by the state, it is equally inimical to the dignity of the accused to use his or her silence to assist in grounding a belief in guilt beyond a reasonable doubt. To use silence in this manner is to treat it as communicative evidence of guilt. To illustrate this point, suppose an accused did commit the offence for which he was charged. If he testifies and is truthful, he will be found guilty as the result of what he said. If he does not testify and is found guilty in part because of his silence, he is found guilty because of what he did not say. No matter what the non-perjuring accused decides, communicative evidence emanating from the accused is used against

2018 ONCJ 640 (*)

him. The failure to testify tends to place the accused in the same position as if he had testified and admitted his guilt. In my view, this is tantamount to conscription of self-incriminating communicative evidence and is contrary to the underlying purpose of the right to silence. In order to respect the dignity of the accused, the silence of the accused should not be used as a piece of evidence against him or her.

The Presumption of Innocence

The presumption of innocence, enshrined at trial in s. 11(d) of the Charter, provides further support for the conclusion that silence of the accused at trial cannot be placed on the evidentiary scales against the accused. Lamer J. (as he then was) stated in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357, that:

Section 11(d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or calling other evidence.

If silence may be used against the accused in establishing guilt, part of the burden of proof has shifted to the accused. In a situation where the accused exercises his or her right to silence at trial, the Crown need only prove the case to some point short of beyond a reasonable doubt, and the failure to testify takes it over the threshold. The presumption of innocence, however, indicates that it is not incumbent on the accused to present any evidence at all, rather it is for the Crown to prove him or her guilty. Thus, in order for the burden of proof to remain with the Crown, as required by the Charter, the silence of the accused should not be used against him or her in building the case for guilt. Belief in guilt beyond a reasonable doubt must be grounded on the testimony and any other tangible or demonstrative evidence admitted during the trial.

Some reference to the silence of the accused by the trier of fact may not offend the Charter principles discussed above: where in a trial by judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt. If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn't, the Crown's case prevails and the accused will be convicted. It is only in this sense that the accused "need respond" once the Crown has proved its case beyond a reasonable doubt. Another permissible reference to the silence of the accused was alluded to by the Court of Appeal in this case. In its view, such a reference is permitted by a judge trying a case alone to indicate that he need not speculate about possible defences that might have been offered by the accused had he or she testified. As McEachern C.J.B.C. stated (at p. 171):

In other words, the court will not speculate that the accused may have some unstated defence, such as, in this case, that someone may have stolen his driver's licence.

Such treatment of the silence of the accused does not offend either the right to silence or the presumption of innocence. If silence is simply taken as assuring

2018 ONCJ 640 (*)

the trier of fact that it need not speculate about unspoken explanations, then belief in guilt beyond a reasonable doubt is not in part grounded on the silence of the accused, but rather is grounded on the evidence against him or her. The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build the case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence. Moreover, the presumption of innocence is respected, in that it is not incumbent on the accused to defend him- or herself or face the possibility of conviction on the basis of his or her silence. Thus, a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict. On the other hand, if there exists in evidence a rational explanation or inference that is capable of raising a reasonable doubt about guilt, silence cannot be used to reject this explanation.

[294]Moreover, in R. v. Schell (2000), 148 C.C.C. (3d) 219, the Ontario Court of Appeal held, at para. 55, that Crown counsel should not have led evidence from the arresting officer that the appellant had not made a statement upon arrest because the appellant had the right to remain silent and that there was no permissible use of his silence:

“Crown counsel should not have led evidence from the arresting officer that the appellant had not made a statement upon arrest. The appellant had the right to remain silent and there was no permissible use of his silence.”

[295]However, the right to remain silent under the criminal law does not necessarily operate the same in the regulatory sphere, especially where individuals are involved in a regulated industry in which the legislation governing their activity may legally compel the individual to make statements or provide information to an investigator. For example, under Ontario’s Highway Traffic Act, drivers involved in an accident are statutorily-compelled to provide an accident report to a police officer. Similarly, under the federal Income Tax Act, taxpayers are legally required to provide information to an auditor. However, when the information that is being collected by a government agency is for the predominant purpose of being used as evidence for prosecuting an offence, then the administrative power to legally compel information to be provided may no longer be used by the government agency.

[296]Furthermore, In R. v. Turcotte, [2005] S.C.J. No. 51 (S.C.C.), at paras. 41 to 52 and 55 to 59, Abella J. writing for the Supreme Court, confirmed that under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. Abella J. also held that evidence of an accused’s silence is generally not admissible as evidence of guilt, but is admissible in limited circumstances where the Crown can establish a real relevance and a proper basis, with an appropriate warning to the jury. In addition, Abella J. held that evidence of silence may also be admissible when the defence raises an issue that renders the accused's silence relevant, such as where the

2018 ONCJ 640 (*)

defence seeks to emphasize the accused's cooperation with the authorities; where the accused testified that he had denied the charges against him at the time he was arrested; or where silence is relevant to the defence theory of mistaken identity and a flawed police investigation, or in cases where the accused failed to disclose his or her alibi in a timely or adequate manner. Furthermore, Abella J. held that evidence of silence may also be admissible if it is inextricably bound up with the narrative or other evidence and cannot easily be extricated [emphasis is mine below]:.

Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:

In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683]

Although its temporal limits have not yet been fully defined, the right to silence has also received Charter benediction. In R. v. Hebert, [1990] 2 S.C.R. 151, the first decision from this Court recognizing it as a s. 7 right, an accused, who had been arrested and advised of his rights, refused to provide a statement to the police after consulting counsel. He was then placed in a cell with an undercover officer posing as a suspect under arrest. During the course of their conversation, the accused incriminated himself. The question before the Court was whether the statement to the undercover officer was admissible. Writing for the majority, McLachlin J. held that it was not admissible because it violated the accused's right to silence found in s. 7 of the Canadian Charter of Rights and Freedoms.

In addition to emphasizing the importance of providing protection from the power of the state, McLachlin J. founded the s. 7 right to silence in two common law doctrines: the confessions rule and the privilege against self-incrimination, explaining that both emerge from the following unifying theme:

[T]he idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent. [p. 164]

It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt. As Cory J. explained in Chambers, where the trial judge failed to instruct the jury that the accused's silence could not be used as evidence of guilt:

It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer's question but nonetheless put in evidence that the

2018 ONCJ 640 (*)

accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. [p. 1316]

Although Chambers dealt specifically with silence after the accused had been cautioned, it would equally be "a snare and a delusion" to allow evidence of any valid exercise of the right to be used as evidence of guilt.

Moreover, as Doherty and Rosenberg JJ.A. explained in R. v. B. (S.C.) (1997), 36 O.R. (3d) 516 (C.A.), since, in most circumstances, individuals are under no obligation to assist the police, their silence cannot, on its own, be probative of guilt:

... a refusal to assist is nothing more than the exercise of a recognized liberty and, standing alone, says nothing about that person's culpability. [p. 529]

Evidence of silence is, however, admissible in limited circumstances. As Cory J. held in Chambers, at p. 1318, if "the Crown can establish a real relevance and a proper basis", evidence of silence can be admitted with an appropriate warning to the jury.

There are circumstances where the right to silence must bend. In R. v. Crawford, [1995] 1 S.C.R. 858, for example, the Court was confronted with a conflict between the right to silence and the right to full answer and defence. Two men were charged with second degree murder after a man was beaten to death. At their joint trial, each blamed the other. Crawford, one of the accused, had not given the police a statement, but he chose to testify at trial in his own defence. His co-accused's counsel cross-examined him on his failure to make a statement to the police. This failure was negatively contrasted with the fact that his co- accused had given a full statement to the police at the earliest opportunity. Sopinka J., writing for the majority, held that a balance between the two competing rights can be achieved if the evidence of silence is admitted, but used only to assess credibility and not to infer guilt. Since the jury had been invited to infer guilt from Crawford's silence, the Court ordered a new trial.

Evidence of silence may also be admissible when the defence raises an issue that renders the accused's silence relevant. Examples include circumstances where the defence seeks to emphasize the accused's cooperation with the authorities (R. v. Lavallee, [1980] O.J. No. 540 (C.A.)); where the accused testified that he had denied the charges against him at the time he was arrested (R. v. Ouellette (1997), 200 A.R. 363 (C.A.)); or where silence is relevant to the defence theory of mistaken identity and a flawed police investigation (R. v. M.C.W. (2002), 169 B.C.A.C. 128, 2002 BCCA 341 ).

Similarly, cases where the accused failed to disclose his or her alibi in a timely or adequate manner provide a well established exception to the prohibition on using pre-trial silence against an accused: R. v. Cleghorn, [1995] 3 S.C.R. 175. Silence might also be admissible if it is inextricably bound up with the narrative or other evidence and cannot easily be extricated.

The Crown argued that any right to silence is engaged only when the accused comes within "the power of the state" and that the right has no relevance when

2018 ONCJ 640 (*)

the state has done nothing to use that power against the individual. This, with respect, makes the right's borders too confining. In general, absent a statutory requirement to the contrary, individuals have the right to choose whether to speak to the police, even if they are not detained or arrested. The common law right to silence exists at all times against the state, whether or not the person asserting it is within its power or control. Like the confessions rule, an accused's right to silence applies any time he or she interacts with a person in authority, whether detained or not. It is a right premised on an individual's freedom to choose the extent of his or her cooperation with the police, and is animated by a recognition of the potentially coercive impact of the state's authority and a concern that individuals not be required to incriminate themselves. These policy considerations exist both before and after arrest or detention. There is, as a result, no principled basis for failing to extend the common law right to silence to both periods.

Nor do I share the Crown's view that by attending at the detachment and answering some of the police's questions, Mr. Turcotte waived any right he might otherwise have had. A willingness to impart some information to the police does not completely submerge an individual's right not to respond to police questioning. He or she need not be mute to reflect an intention to invoke it. An individual can provide some, none, or all of the information he or she has. A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction.

This is significant in deciding whether evidence of his silence was admissible as post-offence conduct, that is, evidence that is probative of guilt. Conduct after a crime has been committed is only admissible as "post-offence conduct" when it provides circumstantial evidence of guilt. The necessary relevance is lost if there is no connection between the conduct and guilt. The law imposes no duty to speak to or cooperate with the police. This fact alone severs any link between silence and guilt. Silence in the face of police questioning will, therefore, rarely be admissible as post-offence conduct because it is rarely probative of guilt. Refusing to do what one has a right to refuse to do reveals nothing. An inference of guilt cannot logically or morally emerge from the exercise of a protected right. Using silence as evidence of guilt artificially creates a duty, despite a right to the contrary, to answer all police questions.

Since there was no duty on Mr. Turcotte's part to speak to the police, his failure to do so was irrelevant; because it was irrelevant, no rational conclusion about guilt or innocence can be drawn from it; and because it was not probative of guilt, it could not be characterized for the jury as "post-offence conduct".

Nor do I see how Mr. Turcotte's silence could be used as "state of mind" evidence from which guilt could be inferred. The Crown argued that Mr. Turcotte's silence negated his claim that his state of mind was one of shock and panic. It is clear from the Crown's closing argument that there was little difference between asking the jury to consider Mr. Turcotte's silence as evidence of his state of mind, and asking them to consider it as evidence of his guilty conscience. So, for example, during his closing argument the Crown argued:

2018 ONCJ 640 (*)

That may tell you something about the guilty mind of Mr. Turcotte at the time. But again, it doesn't show that he was in a state of shock or panic, but rather that he was thinking about what he said and chose to say what he wanted to say and didn't want to say.

In order to make this claim, it was necessary for the Crown to suggest that his silence was motivated by a different state of mind, namely his guilty conscience. Characterizing the silence as state of mind evidence was simply another way of arguing that the silence was post-offence conduct probative of Mr. Turcotte's guilt.

While not admissible as post-offence conduct or state of mind evidence, Mr. Turcotte's behaviour at the R.C.M.P. detachment, including his refusal to answer some of the police's questions, was, arguably, admissible as an inextricable part of the narrative. As previously indicated, no issue was raised about its admissibility either at trial or on appeal. But, having admitted his silence into evidence, the trial judge was obliged to tell the jury in the clearest of terms that it could not be used to support an inference of guilt in order to contradict an intuitive impulse to conclude that silence is incompatible with innocence. Where evidence of silence is admitted, juries must be instructed about the proper purpose for which the evidence was admitted, the impermissible inferences which must not be drawn from evidence of silence, the limited probative value of silence, and the dangers of relying on such evidence.

The failure to give the jury this limiting instruction, particularly given the circumstantial nature of the Crown's case, was highly prejudicial.

a) Statutes governing regulated industries sometimes compel participants to cooperate with inspectors

[297]In R. v. Fitzpatrick, [1995] S.C.J. No. 94, at paras. 29, 30, and 50, the Supreme Court, held that the Charter was not meant to tie the hands of the regulatory state. Moreover, the Supreme Court reiterated that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one, and that constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences. In addition, the Supreme Court held in that case that the hail reports and fishing logs had constituted the "ordinary" records of those licensed to participate in the groundfish fishery. Moreover, the Supreme Court also reasoned that even though the hail reports and fishing logs records are statutorily required and would not exist but for s. 61 of the governing legislation, the statutory compulsion does not suddenly turn them into compelled testimony of the kind that is taken during an investigation into wrongdoing [emphasis is mine below]:

At issue in this case is the ability of the government to enforce important regulatory objectives relating to the conservation and management of the

2018 ONCJ 640 (*)

groundfish fishery. To suggest that s. 7 of the Charter protects individuals who voluntary participate in this fishery from being "conscripted" against themselves, by having information used against them that they were knowingly required to provide as a condition of obtaining their fishing licences, would in my view be to overshoot the purposes of the Charter. The right against self-incrimination has never yet been extended that far; nor should it be. The Charter was not meant to tie the hands of the regulatory state.

In determining the ambit of the principle against self-incrimination in this case, it is important to consider the context in which the appellant's claim arises. This Court has often stated that the context of a Charter claim is crucial in determining the extent of the right asserted; see for example my comments in Lyons, supra, at p. 361, and in Thomson Newspapers, supra, at pp. 505-8 and 516-17. In particular, in Wholesale Travel, supra, at p. 226, Cory J. held that "a Charter right may have different scope and implications in a regulatory context than in a truly criminal one", and that "constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences". These comments must be borne in mind in approaching the appellant's claims, for it is made in the context of a detailed regulatory regime that governs state conservation and management of the fishery. In this regulatory environment, we must be careful to avoid automatically applying rules that have been developed respecting self- incrimination in the criminal sphere.

Both the appellant and Wood J.A. in the court below argued that hail reports and fishing logs are similar to the compelled testimony considered under s. 7 in Thomson Newspapers, supra, because these records are "created" in response to state compulsion, and do not arise from the ordinary (private) course of business, merely to be "located" by the individual. With respect, I do not agree. In my view, hail reports and fishing logs should be seen to constitute the "ordinary" records of those licensed to participate in the groundfish fishery; the fact that these records are statutorily required, and would not exist but for s. 61 of the Act, does not suddenly turn them into compelled testimony of the kind that is taken during an investigation into wrongdoing. Hail reports and fishing logs are required from all commercial fishers and assist in the routine administration of the Fisheries Act, quite apart from any investigation into wrongdoing. They are produced by all the participants in the regulatory sphere, not just by one person in response to a criminal investigation; they are therefore similar to the pre- existing business records considered in Thomson Newspapers.

[298]In applying the relevant legal principles, the defendant’s contention that the prosecutor had acted improperly by adducing evidence or commenting on the defendants refusal to cooperate or speak respectively with the ESA Inspector and ESA Investigator is not necessarily improper nor does it infringe the defendant’s right to silence. This is because the defendant’s charges are strict liability regulatory offences being tried in a non-jury situation and in which the Electricity Act, 1998, does statutorily require an individual in certain circumstances to cooperate and provide documents or things to an ESA inspector. Accordingly, evidence on the defendant’s refusal to speak or corporate with the ESA inspector

2018 ONCJ 640 (*)

or ESA investigator is relevant and can be admitted in respect to evidence on the defendant’s due diligence used to avoid committing the offences, or as relevant evidence in respect to the defendant’s credibility, or on the issue of recent fabrication where a claim that someone else did the electrical work is later adduced by the defendant as a defence. On the other hand, evidence of the defendant’s refusal to cooperate or refusal to answer questions from the ESA Inspector and ESA Investigator would not be evidence that can be used to prove guilt.

[299]Again, as the admissibility and consideration of the evidence of the defendant’s lack of cooperation and refusal to answer questions from the ESA inspector and ESA investigator is an evidentiary issue, the defendant’s concern about the prejudicial effect of such evidence is lessened because this is a non-jury trial and the charges involved strict liability regulatory offences, in which the trier would be mindful of applying the relevant legal principles and law and any evidence that contravenes the right to silence can be disabused and given no weight, and that such evidence would not be used as proof of any of the elements of the offence, nor would it be used improperly as proof of guilt.

[300]Therefore, the prosecutor’s conduct in regards to leading relevant evidence on the defendant’s failure to cooperate with ESA Inspector Shaun Smith and the defendant’s refusal to speak with ESA Investigator Gary Corbett would not be inappropriate, and as such the prosecutorial conduct has not caused an unfair trial, nor prejudiced the integrity of the judicial process, which would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(xii)The prosecutor had argued with the defendant directly rather than speaking or making submissions through the court

[301]The defendant also contends that the prosecutor had acted improperly when he had argued directly with the defendant when the defendant had been testifying, instead of making submissions through the court. The defendant submits that this had occurred when the prosecutor had been complaining about the defendant’s convoluted testimony and whether the defendant would call any witnesses to corroborate the defendant’s testimony, when the prosecutor then opined that at the end of the day the defendant was going to say that it was a conspiracy. Then when the defendant replied to the prosecutor, “No, that’s your opinion though”, the defendant contends that the prosecutor had addressed the defendant directly while the defendant was still testifying in-chief, by the prosecutor stating to the defendant that the prosecutor believed that is what the defendant was going to say, that it was a conspiracy against the defendant and that everyone is lying. However, the defendant then responded to the prosecution’s suggestion by informing the court that to the prosecutor, the defendant was already guilty, but

2018 ONCJ 640 (*)

that the defendant had been proving that the prosecutor was not right and that what the prosecutor was saying is not correct or true.

[302]Furthermore, on the issue of potential witnesses that the defendant could call, the defendant also contends that the prosecutor had directly stated to the defendant that the prosecutor would be delighted, tickled, and elated to see and hear these people, and to get an opportunity to cross examine these people.

[303]In response to the defendant’s contention that the prosecutor had improperly argued directly with the defendant when he had been testifying, the prosecution submits that the defendant had been both simultaneously a witness and his own advocate, so that arguing directly with the defendant when the defendant was testifying would have been when the defendant had been speaking in his role as his own advocate and not as a witness.

[304]Although the prosecutor may not have been following proper decorum and traditional principles of advocacy when arguing with the defendant directly about whether the defendant was going to call any witnesses to corroborate the defendants’ testimony about what others had supposedly told him, or what other people had supposedly done when the defendant was testifying, those supposed arguments from the prosecutor could have also been questions to test the defendant’s credibility or simply procedural questions on whether those witnesses with that evidence or information would be called to corroborate the defendant’s claims.

[305]Furthermore, as this particular contention also concerns evidentiary issues, the defendant’s concern about the prejudicial effect of the prosecutor arguing with the defendant directly while in the witness stand is lessened because this is a non-jury trial and the charges involve strict liability regulatory offences, for which the trier would be mindful of applying the relevant legal principles and law and any prejudicial effect from the prosecutor arguing directly with the defendant while the defendant was testifying can be disabused and not be considered negatively or as proof of any of the elements of the offence, nor would it be used improperly as proof of guilt.

[306]Therefore, the prosecutor’s conduct in arguing directly with the defendant while the defendant had been testifying would not have prejudiced the fairness of the trial, nor prejudiced the integrity of the judicial process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(xiii)The prosecutor had threatened to request the maximum penalty available for the defendant for arbitrary reasons

2018 ONCJ 640 (*)

[307]Moreover, the defendant contends that the prosecutor had acted improperly when the prosecutor had threatened to seek the maximum penalty if the defendant were convicted of committing the three offences.

[308]In response, the prosecution submits that the defendant’s contextualization of the prosecutor’s comments about seeking the maximum penalty is incorrect, as the prosecution contends that the prosecutor had merely wanted to ensure that the defendant had every opportunity to call the witnesses he required so that the defendant could make full answer and defence and have a fair trial, since the prosecutor would be seeking the maximum penalty available under the Electricity Act, 1998, if the defendant were convicted. Moreover, the prosecution submits that the prosecutor had made that comment in the course of offering to consent to an adjournment, so that the defendant could secure witnesses that the defendant had wished to call and that the defendant would have sufficient time to bring those witnesses to court, even if further trial dates were needed, because the prosecutor would be seeking the maximum penalty under the statute if the defendant was found guilty.

[309]In respect to the prosecutor’s comment at issue, it is ambiguous what the prosecutor meant when he stated, “I would suggest that you even give this individual – and he didn’t even ask for it, maybe we didn’t hear him, but time to get these people. Get summonses out to make full representation, full defence, full. Because I am very curious because if in fact you do find him guilty, I’m gonna be asking for maximum penalty. I don’t know what he done to these witnesses – to the victims, but also in terms of what he’s done in terms of the Court’s time.”

[310]However, in any context, the prosecutor making a comment that he would be seeking the maximum penalty before the defendant had even been convicted would not be a harmless comment and would be undermine the prosecutor’s role as a quasi-minister of justice. And, it would have been more harmful if this had been a jury trial, as it gives the potential impression that the defendant has committed the most serious of offences, considering that the prosecutor had been seeking the maximum penalty before the evidentiary portion of the trial had even been completed.

[311]But since this is not a jury trial, the trier who heard and perceived the impugned comments and in the context when the comments would have been made, would be able to consider their effects on the defendant, their prejudice to the fairness of the trial and on the outcome of the trial, as well as its prejudice to the integrity of the judicial process. In this particular situation, the prosecutor’s comment about seeking the maximum penalty if the defendant were convicted did not cause the defendant to receive an unfair trial, nor did it undermine the integrity of the judicial process, since the trier would be cognizant of applying the relevant legal principles and law and would also be able to disabuse and give no weight to the prosecutor’s comment, nor to use negatively or improperly as proof of guilt.

2018 ONCJ 640 (*)

[312]Hence, the prosecutor’s conduct in making an inappropriate submission about seeking the maximum penalty is not prosecutorial conduct that had caused an unfair trial, nor had it prejudiced the integrity of the judicial process, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(8)The Main Category: Did The Prosecutor’s Conduct During The Trial Prevent The Defendant From Having A Fair Trial?

[313]To reiterate, the defendant contends that as a result of the cumulative effect of the prosecutor’s improper conduct, which consisted of many indiscretions during the trial when the defendant was unrepresented, the defendant maintains that he had been unable to receive a fair trial, and as such, there is a basis for finding an abuse of process under the main category.

[314]However, much of the defendant’s grounds for a claim of abuse of process concerned evidentiary issues that involved the prosecutor adducing or eliciting prejudicial evidence from leading questions to his own witnesses, prejudicial hearsay evidence, prejudicial bad character evidence, prejudicial opinion evidence, and irrelevant prejudicial evidence. In addition, the defendant also contends that the prosecutor’s sarcastic comments, insults, mocking language, and demeaning tone has also prejudiced the defendant’s right to a fair trial.

[315]After applying the relevant legal principles in respect to these evidentiary issues raised by the defendant, the prosecutor had not adduced evidence inappropriately, as the evidence in question were for the most part relevant to issues in this case. Moreover, the defendant’s concern about the prejudicial effect of evidence that had been adduced from leading questions put by the prosecutor to their own witnesses and the elicitation of irrelevant hearsay, bad character, and lay opinion evidence into the trial, has to be viewed in context and its intended use in the trial, but any prejudicial effect of the impugned evidence had been lessened as this was a non-jury trial and the charges involved strict liability regulatory offences in which the prosecution can elicit evidence in their case-in-chief to rebut a defence of due diligence or other anticipated defences.

[316]And, in respect to the claim that the prosecutor’s sarcastic comments, insults, mocking language, and demeaning tone has caused the defendant prejudice and an unfair trial, the trier who heard and perceived the impugned comments, and in the context when the comments would have been made, would be able to consider their effects on the defendant, their prejudice to the fairness of the trial and on the outcome of the trial.

[317]Ergo, after considering the impugned evidentiary issues and the context in which the prosecutor’s impugned comments, language, and tone were used and what had been occurring in the trial at the time, the cumulative effect of the prosecutor’s

2018 ONCJ 640 (*)

conduct, although not ideal and of perfect comportment, did not go beyond aggressive to abusive so as to cause the defendant to receive an unfair trial, since the defendant’s trial was a non-jury trial for which the trier would be cognizant of applying the relevant legal principles and law, and would also be able to disabuse and give no weight to any hearsay, bad character, opinion, or any other irrelevant prejudicial evidence, nor put any weight on any inappropriate, sarcastic, or demeaning comments made by the prosecutor about the defendant’s memory, business practices, or personal lifestyle, or to improperly use the impugned evidence or the immoderate comments of the prosecutor as proof of guilt.

[318]Accordingly, the defendant’s right to a fair trial has not been prejudiced by the cumulative effect of the prosecutor’s conduct in eliciting the impugned evidence, nor by the prosecutor’s impugned comments, language or tone, that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(9)The Residual Category: Did The Prosecutor’s Conduct During The Trial Cause Prejudice To The Integrity Of The Judicial Process?

[319]For this branch of the test for abuse of process, the defendant also contends that the cumulative effect of the prosecutor’s improper conduct during the trial when the defendant was unrepresented also undermined the integrity of the judicial process.

[320]However, to reiterate, Moldaver J. emphasized, at paras. 35 and 44, in R. v. Babos, [2014] S.C.J. No. 16 (S.C.C.), that finding abuse of process under the residual category is indeed exceptional and very rare and that when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions which underlie the community’s sense of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. In addition, Moldaver noted that at times, state conduct would be so troublesome that having a trial, even a fair one, would leave the impression that the justice system condones conduct that offends society's sense of fair play and decency [emphasis is mine below]:

By contrast,