ONTARIO COURT OF JUSTICE

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1 Sault Ste. Marie COURT FILE No.: Citation: R. v. Maki, 2007 ONCJ 115 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Michael Kelly, for the Crown AND ROBERT DANIEL MAKI, Joseph Bisceglia, for the accused HEARD: February 15, 2007 JUSTICE COHEN: [1] This is an application by Mr. Bisceglia, counsel for Robert Daniel Maki, asking the court to deny the Crown the right to call viva voce evidence during the voir dire and to stay the charges against the accused. PRELUDE [2] In this particular matter it is important to consider all facets surrounding the application that surfaced by counsel for the accused after the arraignment and prior to the commencement of the voir dire and the ensuing trial. In effect this was an application to deny the Crown the ability to call viva voce evidence and to stay the proceedings based on an alleged defect in the Crown s adherence to the rules of criminal procedure of the Ontario Court of Justice. [3] Mr. Maki was arraigned on the February 15, 2007 and tendered a plea of not guilty to the two following counts. Robert Daniel Maki is charged that on or about the 18 th day of November 2005 at the City of Sault Ste. Marie in the said Region, while his ability to operate a motor vehicle was impaired by alcohol or drug, did operate or have the care or control of a motor vehicle on Pim Street, contrary to section 253(a of the Criminal Code of Canada. And further, on or about the 18 th day of November in the year 2005 at the City of Sault Ste. Marie in the said Region, having consume alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate or have the care and control of a motor vehicle on Pim Street, contrary to section 253(b of the Criminal Code of Canada.

2 2 [4] The matter was set for trial in the Ontario Court of Justice on September 7, On the August 8, 2006 a factum was filed by counsel for the accused, followed by a brief of authorities on September 6, [5] In the interim, Mr. Kelly, an assistant Crown attorney for the territorial district of Algoma sent this letter to Bisceglia and Associates which I recite in full. A copy was also filed in the office of the Ontario Court of Justice on September 1, I have now been given carriage of this matter. The Notice of Application for a stay of proceedings and exclusion of evidence was received by our office August 30, As you know, the Rules of the Ontario Court contain several requirements in such circumstances. Among those that are particularly pertinent in this case are: the requirement that the Applicant serve the respondent with materials required for the application not less than 15 days before the trial date; and the requirement that the Respondent file materials on which it places reliance no later than five days before the hearing. These requirements make it obvious that the Respondent should have 10 days in which to prepare and file materials. Given the timing of your Notice of Application that is impossible. With service just in advance of a long weekend and trial commitments between now and the trial date, it is not possible to prepare appropriately for your Application or to bring an adjournment application in advance of the trial date. I note that the trial date was set March 20, 2006 so that there was plenty of time to serve this application in compliance with the time frames set out in the Rules. On September 7, 2006, I will therefore bring an application for an adjournment on the hearing of the Charter application. I also note that your notice indicates you will be relying on the oral evidence to be given by the accused/applicant yet no affidavit by or on behalf of the applicant has been served on our office. Once again, the Rules call for you to disclose in affidavit form the facts material to the determination of these issues. That includes the evidence to be provided by your client. [6] On September 7, 2006, an application was brought before the presiding Justice in the Ontario Court of Justice to adjourn this particular trial. [7] The application was granted. Eventually a new trial date was set before myself February 15 and 16, [8] On January 17, 2007, an affidavit of Robert Maki was filed with this court. It states: I, Robert Maki, of the City of Sault Ste. Marie, District of Algoma, make oath and say as follows: 1. I am the applicant/accused in this matter and as such have knowledge of the facts hereinafter deposed to. 2. That at the time of this charge being laid, I had been a patron of a local establishment known as Smack Daddy s Bar located in the City of Sault

3 3 Ste. Marie, District of Algoma. 3. That while I was there an individual who I later found out to be liquor inspector, Eric Groulx, was in the said establishment. 4. That while I was there I was asked to leave by an employee of the establishment. 5. That I left the premises and when I left the premises I went to my motor vehicle to obtain a cell phone so that I could contact my wife to pick me up. 6. That I was in my motor vehicle when Mr. Eric Groulx grabbed me and pulled me out of my truck. I was put on the ground. I was advised by the individual later identified as Eric Groulx that I was being arrested for impaired driving. 7. I make this Affidavit in good faith and for no improper purpose. [9] On February 13, 2007 a response was filed by Mr. Kelly, Assistant Crown Attorney, which is set out as follows: TAKE NOTICE that the Respondent will oppose the application to be made on behalf of the Applicant at the commencement of his trial on February 15, 2007 at the Court House, Sault Ste. Marie, Ontario for an order staying the proceedings and excluding the evidence. THE GROUNDS FOR THIS RESPONSE ARE: 1. The Applicant was removed from a local bar, Smack Daddy s, due to intoxication. 2. Eric Groulx, the liquor inspector, observed the Applicant walk to a vehicle, get in the pickup truck, and start the engine. 3. Mr. Groulx went to the vehicle and showed the Applicant his badge, then identified himself. 4. The Applicant got out of the vehicle and eventually tried to leave the area. 5. Mr. Groulx then held him with the help of other patrons until city police arrived. 6. There was no breach of a Charter right. Any citizen observing the commission of an indictable offence can detain the offender and turn him over to the police. WITH RESPECT TO THE MATERIALS TO BE CONSIDERED ON THE APPLICATION, THE RESPONDENT RELIES UPON THE FOLLOWING: 1. The Respondent will rely on the evidence of witnesses identified in the Crown brief. 2. Such further and other materials as needed in response to the evidence presented by the Applicant. THE RELIEF SOUGHT IS: 1. An Ordering dismissing the application. THE RESPONDENT MAY BE SERVED WITH DOCUMENTS

4 4 PERTINENT TO THIS APPLICATION: 1. By service in accordance with Rule 5 through the Office of the Crown Attorney, 445 Albert Street East, Sault Ste. Marie, Ontario, P6A 2J9, Facsimile ( DATED AT Sault Ste. Marie, Ontario this 12 th day of February, [10] Prior to the commencement of the trial I asked counsel how they wanted to proceed relating to the exclusion of evidence. By way of a voir dire at the commencement of the matter or to have the evidence adduced during the course of the trial. [11] It was agreed by both counsel the court should hear the matter by way of a voir dire at the commencement of the proceedings. [12] It was at this juncture in this matter that Mr. Bisceglia made the motion to stay based on allegations as to the Crown not adhering to the rules of criminal procedure in the Ontario Court of Justice and as such there was a deficiency. RULES OF COURT [13] Justice Rick Libman said this in R. v. Lavallata, [1999] O.J. 4220: 7 The Rules of the Ontario Court of Justice in Criminal proceedings were enacted effective 1 January These rules equip the Ontario Court of Justice, for the first time, with rules of court to assist it in regulating matters brought before it. Such rules of court are authorized by ss. 482(2 of the Criminal Code. 8 The purpose of the rules is to standardize the practice in the Ontario Court of Justice (and, as far as practicable between the Superior Court of Justice and the Ontario Court of Justice and to create a uniform set of expectations in dealing with certain types of applications before the Court. This, in turn, facilitates criminal case and trial management. 9 Rule 1.04(1 reflects the philosophy behind the Rules of the Ontario Court of Justice in Criminal Proceedings in these terms: These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. 10 The court has a discretion under r to dispense with compliance with the rules only where, as is necessary, in the interests of justice. 11 It is within the spirit of these "organizing principles" that a court may exercise its discretion under r. 3.02(1 to extend or abridge any time period prescribed by the rules, or make an order in accordance with r. 2.02, on such terms as are just. See R. v. Djevdet [1998] O.J. No (Gen. Div. [Hill J.] at para In summary, rules of court do not exist simply for the sake of having rules. They serve a critical function in enhancing the quality of the administration of justice in criminal cases. The requirements of the rules serve to focus proceedings and to secure a minimally adequate record upon which to adjudicate: R. v. Djevdet, supra, paras. 7-8.

5 5 He then said this relating to the actual rules: 18 Rule governs the materials to be filed on applications brought under r. 30. Subrules 30.05(1 and (2 apply to applicants whereas subrule 30.05(3 concerns the respondent. For ease of convenience they read in full as follows: MATERIALS FOR USE ON APPLICATION Materials to be Filed 30.05(1 In addition to any other materials that may be required in the proceedings in which the exclusionary issue under the Charter is raised, a Notice of Application under r shall be accompanied by (a a copy of the information(s to which the exclusionary issue raised in the Notice of Application relates; (b a transcript of any proceedings earlier taken which are material to a determination of the exclusionary issue raised in the Notice of Application; and (c where necessary to complete the record, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2; and (d a copy of any other material in the court file that is necessary for the hearing and determination of the exclusionary issue raised in the Notice of Application. Affidavit by or on Behalf of the Applicant (2 The affidavit filed by or on behalf of the applicant described in clause (1(c shall include (a a description of the affiant's status and the basis of his or her knowledge of the matters deposed; (b a statement of the particulars of the charge to which the application relates; and (c a statement of the facts material to a just determination of the exclusionary issue which are not disclosed in any other materials filed in support of the application. Respondent's Documentary, Affidavit or Other Evidence (3 Where the respondent seeks to rely on material that is not required to be filed under subrule (1 or (2, the respondent shall file documentary, affidavit or other evidence upon which reliance shall be placed no later than five days before the hearing of the application. 19 It will be observed from the above that the materials to be used in an application under r. 30 are set cut in r (1. Subrule (1 particularizes those materials which are to accompany the Notice of Application. This provision is based on r (1 respecting constitutional issues, as well as rr (1 and 32.05(1 respecting applications to adduce evidence of the complainant's sexual activity and for production of records not in possession of the prosecutor, respectively. 20 The contents of the applicant's affidavit are set out in r (2. This subrule is substantially the same as r (2 as well as rr (2 and 32.05(2.

6 6 21 Where the respondent seeks to rely on material other than that which must be filed by the applicant under r (1 or (2, the respondent must file documentary, affidavit or other material upon which reliance shall be placed no later than five days before the hearing of the application: r (3. Subrule (3 is based on r (3 respecting constitutional issues, which is, in turn, based on r (3 of the Criminal Proceedings Rules. Subrules (3 and 32.05(3 are to the same effect. However, the concluding words "no later than five days before the hearing of the application" have been added, in contrast to the Criminal Proceedings Rules, to impose a timing requirement on the respondent as well as the applicant. In addition, the respondent under these rules, is not limited to filing affidavit material, but may instead file documentary or other material upon which reliance may be placed. It is also open to the parties to consider filing an agreed statement of facts, where appropriate, to obviate the filing of conflicting affidavit or documentary material and subsequent crossexamination thereon. 22 These application materials provisions should be interpreted within the general principles and framework of the rules themselves. [14] The allegations in this matter and the potential defence are very case specific. [15] Going one step further, both counsel rely on R. v. Dumont, 149 C.C.C. (3d, 568, a decision of the Court of Appeal for Ontario where the court said this: [2] The sole issue is whether rule 30.05(3 of the Rules of the Ontario Court of Justice in Criminal Proceedings requires the Crown to give notice of its intention to call viva voce evidence in response to an application to exclude evidence under s. 24(2 of the Canadian Charter of Rights and Freedoms brought by the accused. [3] The rule provides:materials to be Filed 30.05(1 In addition to any other materials that may be required in the proceedings in which the exclusionary issue under the Charter is raised, a Notice of Application under rule shall be accompanied by (a a copy of the information(s to which the exclusionary issue raised in the Notice of Application relates; (b a transcript of any proceedings earlier taken which are material to a determination of the exclusionary issue raised in the Notice of Application; and (c where necessary to complete the record, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2; and [page570] (d a copy of any other material in the court file that is necessary for the hearing and determination of the exclusionary issue raised in the Notice of Application.Affidavit by or on Behalf of the Applicant (2 The affidavit filed by or on behalf of the applicant described in clause (1(c shall include (a a description of the affiant's status and the basis of his or her knowledge of the matters deposed; (b a statement of the particulars of the charge to which the application relates; and (c a statement of the facts material to a just determination of the exclusionary issue which are not disclosed in any other materials filed in support of the application.respondent's Documentary, Affidavit or Other Evidence (3 Where the respondent seeks to rely on material that is not required to be filed under subrule (1 or (2, the respondent shall file documentary, affidavit or other evidence upon which reliance shall be placed no later than five days before the hearing of the application.factum May be Required (4

7 7 A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule. [6] In our view, the routine disclosure provided by the Crown does not eliminate the need for compliance with the clear wording of rule 30.05(3. At the very least, the Crown could have given notice of the basis for its opposition to the Charter application. We agree with the summary conviction appeal court judge that the trial judge had a discretion, pursuant to rule 2, to permit the Crown to lead viva voce evidence despite noncompliance with the rule. We also agree that, in the circumstances of this case, there was no error in the exercise of that discretion in refusing to waive compliance with rule 30.05(3. [16] In this case, the Crown did give notice for its opposition to the Charter position. [17] At the same time, one, there is no affidavit filed, and two, there is no application before the court to waive the necessity of the affidavit being filed and allow viva voce evidence to be tendered during the course of the response in the course of the voir dire. [18] In R. v. Lin [2002] O.J released November 28, 2002, Mr. Justice Whealy of the Superior Court of Justice adjudicated on an appeal from the Ontario Court of Justice on a matter very similar to the case at bar. In doing so he referred to several decisions: R. v. Dumont, 149 CCC (3d 508 (Ont. C.A. R. v. Lavallata [1999] O.J. 4220, Libman J. R. v. Marinelli [2001] O.J. 3404, Lane J. And said this in relating to the Crown s response in R. v. Lin which is set out as follows: In this case the Crown Response was: RESPONDENT'S STATEMENT AS TO FACTS 1. The Respondent will be relying on the information contained in the disclosure material including the police officer's notes. 2. The Respondent will also rely on the viva voce evidence of witnesses as outlined in the disclosure material in rebutting the Applicant's submission that sections 7 and 8 of the Charter of Rights and Freedoms ("Charter" were violated. 3. The Respondent will also be relying on such further and other material as counsel may provide and this Honourable Court will permit." 5 The trial judge held the Response failed to meet the requirements of the sub-rule, and refused to hear the viva voce testimony or material from the disclosure package. The Crown appeals. 6 Clearly R (3 makes no reference to viva voce testimony. There is nothing in the Rules which makes such evidence inadmissible. It is common ground the disclosure materials were already in the hands of the applicant. As the applicant was facing trial for refusing to provide a breath sample for a breathalyser test, the disclosure could not have been very voluminous.

8 8 7 The arguments turn upon whether the Crown should have reduced the proposed viva voce testimony to an affidavit and/or reserved the disclosure materials with the Response. 8 I was provided with several cases from the O.C.J. going either way. They are of little help, and are of little precedent value. [19] After referring to R. v. Dumont, he said this in paragraph 10: That does not mean, in my view, that viva voce testimony and material from the disclosure package cannot be employed by the Crown to meet the application. It means only that the Crown is obligated to make a Response that indicates its intention to rely upon such evidence. [20] Justice Whealy adopts the words of Justice Lane in R. v. Marinelli as follows: Paragraph 16 Rule 30.05(3 does, however, impose a response requirement. In certain situations I will discuss later, the desirability for a response from the crown is understandable, and indeed necessary. Where, as in this case, the evidence the crown would lead relevant to the s. 8 Charter application is the same evidence which the crown must lead to demonstrate compliance with the Criminal Code beyond a reasonable doubt (Loveman, 71 C.C.C. (3d 123, supra. p. 127, the type of response required by Rule 30.05(3 seems superfluous. A meaningful response would require reducing to paper, evidence which the crown must necessarily lead at trial. Alternatively, the rule invites boilerplate responses for the sake of form rather than substance. Where the issue is a breach of right to counsel, it is impossible for the court to determine the issue without evidence as to the entire context of the incident. Again, a meaningful paper response by the crown would be an unduly cumbersome requirement. A boilerplate response would fulfil the requirements of the Rule without adding anything to the substance of the determination required by the trial judge at this stage. In my view, a strict application of Rule 30.05(3 in the circumstances of this case would detract from the very objectives of the Rules themselves: a just determination of the real matters in dispute, simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense. [21] Justice Whealy went on to say this: What is required is a sufficient, effective and accurate notification of the material which will be relied upon by the Crown. Clearly, if the material is not already in the hands of the defence, a much more explicit description is necessary. The means or technique of setting out the evidence will vary with the individual case. Such an interpretation will give effect to Rules 1.04 and 2.01, which follow: General Principle 1.04(1 These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. EFFECT OF NON-COMPLIANCE 2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity,

9 9 and the court, (a may grant all necessary amendments or other relief in accordance with rule 2.02, on such terms as are just, to secure the just determination of the real matters in dispute; or (b only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. [22] This is an application brought by counsel for the accused after the arraignment and the pleas of not guilty were taken. It caught the Crown by surprise because there was no motion or application filed in advance. That is the reason and rationale that this court adjourned the matter to receive written argument from both sides. [23] There has been a substantial volume of case law filed relating to the Rules of the Ontario Court of Justice and how they should be interpreted and applied. [24] I take direction from Mr. Justice Whealy in R. v. Lin and the Ontario Court of Appeal in R. v. Dumont. [25] The office of the Crown Attorney in Sault Ste. Marie has more than fulfilled their obligation under the Rules of the Ontario Court of Justice. [26] Mr. Kelly is asking this court to make rulings on eight separate issues. At the present time I can only consider the first five. (1 I am satisfied and rule that the respondent has complied with rule 30.05(3 of the Rules of the Ontario Court of Justice in criminal proceedings which will allow viva voce evidence to be tendered by the Crown attorney during the voir dire. (2 If there is a consensus between the two parties for a change in procedure, we could have all the evidence that would be called during the course of the trial be available for consideration during the application. (3 In the event that there is no consensus on the second order requested, I will be ordering the applicant to present evidence on the application which will be subject to cross-examination. (4 As I mentioned in clause 1, the respondent will be permitted to adduce viva voce evidence or any other appropriate evidence that may be necessary during the course of the voir dire. (5 In considering the application and also considering the case law on point, the voir dire shall proceed only with respect to sections 7, 8 and 24 of the Charter and not relating to sections 10 or 11. [27] In any event, the application to stay is denied.

10 10 Released: March 16, 2007 Signed: Justice W. Wayne Cohen