Ontario Provincial Police Commissioner v. Mosher et al., (2015) 340 O.A.C. 311 (CA)

• Judge: Watt, Lauwers and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 11, 2015
• Jurisdiction: Ontario
• Citations: (2015), 340 O.A.C. 311 (CA);2015 ONCA 722

Provincial Police v. Mosher (2015), 340 O.A.C. 311 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.032

The Commissioner of the Ontario Provincial Police (respondent) and Thunder Bay Police Service (respondent) and Her Majesty the Queen Public Prosecution Service of Canada (respondent) v. Brandie Mosher, Zahed Khan, Justin Cain, Neil Thompson and Rashad Waquad (appellants)

(C58750; 2015 ONCA 722)

Indexed As: Ontario Provincial Police Commissioner v. Mosher et al.

Ontario Court of Appeal

Watt, Lauwers and Hourigan, JJ.A.

October 28, 2015.

Summary:

Several persons charged with drug and criminal organization offences sought disclosure of "informant directives and/or police procedures" from the officers in charge of two investigating police forces. The preliminary inquiry judge issued subpoenas duces tecum requiring the officers in charge to appear at the preliminary inquiry and to bring with them the information requested. The police forces affected by the issuance of the subpoenas applied to quash the subpoenas.

The Ontario Superior Court of Justice granted the application. The motion judge held that when the preliminary inquiry judge entertained the application, he effectively heard a disclosure application that was reserved for the trial judge and was beyond the preliminary inquiry judge's jurisdiction. The issuance of the subpoenas was, in effect, a production order and equally beyond the authority of the preliminary inquiry judge. The persons charged appealed. The prosecution in which the proceedings arose had ended. Each of the persons charged had pled guilty and been sentenced.

The Ontario Court of Appeal held that the appeal was moot, but that it should decide the appeal despite its mootness. The court dismissed the appeal.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Several persons charged with drug and criminal organization offences sought disclosure of "informant directives and/or police procedures" from the officers in charge of two investigating police forces - The preliminary inquiry judge issued subpoenas duces tecum requiring the officers in charge to appear at the preliminary inquiry and to bring with them the information requested - The police forces affected by the issuance of the subpoenas applied to a judge of the Ontario Superior Court of Justice to quash the subpoenas - The motion judge granted the application - The persons charged appealed - The prosecution in which the proceedings arose had ended - Each of the persons charged had pled guilty and been sentenced - The Ontario Court of Appeal held that the appeal was moot, but it would exercise its discretion to decide the issues raised in the appeal despite their mootness - First, the issues raised in the appeal were not unique to these appellants or to the police services whose documents were sought - Second, the issues raised in the appeal remained alive only briefly at a preliminary inquiry - As a result, they were elusive of appellate review - Third, the court was concerned here with a procedural issue of some importance - It was a matter of first impression in an appellate court - Fourth, the expenditure involved might yield dividends in the future by ensuring that preliminary inquiries were not interrupted needlessly to pursue unavailable remedies - Fifth, the appeal was fully argued by all interested parties based on a complete record - See paragraphs 26 to 48.

Criminal Law - Topic 3531.1

Preliminary inquiry - Jurisdiction - To issue subpoena - Several persons charged with drug and criminal organization offences sought disclosure of "informant directives and/or police procedures" from the officers in charge of two investigating police forces - The preliminary inquiry judge issued subpoenas duces tecum requiring the officers in charge to appear at the preliminary inquiry and to bring with them the information requested - The police forces affected by the issuance of the subpoenas applied to a judge of the Ontario Superior Court of Justice to quash the subpoenas - The motion judge granted the application - The motion judge held that when the preliminary inquiry judge entertained the application, he effectively heard a disclosure application that was reserved for the trial judge and beyond the preliminary inquiry judge's jurisdiction - The issuance of the subpoenas was, in effect, a production order and equally beyond the authority of the preliminary inquiry judge - The persons charged appealed - The Ontario Court of Appeal held that the motion judge erred to the extent that he characterized the subpoena duces tecum as the functional equivalent of a production order - The issuance of a subpoena duces tecum was not an order for production or disclosure of the documents the witness was required to bring on the return of the subpoena - Issue of a subpoena duces tecum without more was not a disclosure order or its functional equivalent - However, this error was immaterial to the result of the appeal given the court's conclusion on another ground of appeal - See paragraphs 69 to 93.

Criminal Law - Topic 3531.1

Preliminary inquiry - Jurisdiction - To issue subpoena - Several persons charged with drug and criminal organization offences sought disclosure of "informant directives and/or police procedures" from the officers in charge of two investigating police forces - The preliminary inquiry judge issued subpoenas duces tecum requiring the officers in charge to appear at the preliminary inquiry and to bring with them the information requested - The police forces affected by the issuance of the subpoenas applied to a judge of the Ontario Superior Court of Justice to quash the subpoenas - The motion judge granted the application - The motion judge held that when the preliminary inquiry judge entertained the application, he effectively heard a disclosure application that was reserved for the trial judge and beyond the preliminary inquiry judge's jurisdiction - The issuance of the subpoenas was, in effect, a production order and equally beyond the authority of the preliminary inquiry judge - The persons charged appealed - They argued that the motion judge erred in requiring an O'Connor application to the trial judge for records that could not possibly engage a privacy interest - The Ontario Court of Appeal rejected this ground of appeal - First a subpoena duces tecum did not require or authorize production of the documents to a party - Second, here the irresistible inference was that the purpose of the subpoena duces tecum was not to obtain the testimony of the witness but to obtain disclosure of the specific documents each was requested to bring along - Thus the colourable use of the subpoena was for the remedy of production - The appellants were, in effect, trying to do indirectly through a subpoena what they could not do directly through either of the Stinchcombe or O'Connor regimes - The jurisdiction to grant the remedy of production lay with the trial judge, not the preliminary inquiry justice - While the preliminary inquiry justice had the jurisdiction to issue subpoenas duces tecum, they could not be used by parties as a tool for circumventing that established jurisdictional limit - Third, the appellants' submission that the O'Connor regime could not apply due to a lack of a reasonable expectation of privacy in the directives was incorrect - A reasonable expectation of privacy in the materials sought was not a condition precedent to the application of the O'Connor regime - See paragraphs 94 to 118.

Criminal Law - Topic 3531.2

Preliminary inquiry - Jurisdiction - To order disclosure - [See both Criminal Law - Topic 3531.1 ].

Criminal Law - Topic 3535

Preliminary inquiry - Jurisdiction - Excess of jurisdiction - [See both Criminal Law - Topic 3531.1 ].

Criminal Law - Topic 4211

Procedure - General - Right to be heard - Several persons charged with drug and criminal organization offences sought disclosure of "informant directives and/or police procedures" from the officers in charge of two investigating police forces - The preliminary inquiry judge issued subpoenas requiring the officers in charge to appear at the preliminary inquiry and to bring with them the information requested - The police forces affected by the issuance of the subpoenas applied to a judge of the Ontario Superior Court of Justice to quash the subpoenas - The motion judge granted the application - The motion judge held that when the preliminary inquiry judge entertained the application, he effectively heard a disclosure application that was reserved for the trial judge and beyond the preliminary inquiry judge's jurisdiction - The issuance of the subpoenas was, in effect, a production order and equally beyond the authority of the preliminary inquiry judge - The persons charged appealed - They asserted a violation of the principle of audi alteram partem because the motion judge quashed the subpoenas on a ground that had not been advanced in argument by either affected police force on the hearing of the motion - The Ontario Court of Appeal held that the basis on which the motion judge decided to quash the subpoenas did not offend the audi alteram partem principle - First, considering the nature of the remedy sought before the motion judge (certiorari), whether the preliminary inquiry judge remained within the limits of his jurisdiction was at the forefront of the proceedings before the motion judge - Second, the notice of application, the materials filed in support, and the submissions made at the hearing, put the appellants on notice that the prosecutor and the affected police forces considered the materials sought third party records - Third, the application to the preliminary inquiry judge for subpoenas duces tecum was made without notice to the police forces whose directives were sought - It was not surprising that the forces raised no jurisdictional issue at first instance - Even if the prosecutor did not contest jurisdiction at the preliminary inquiry, acquiescence did not confer jurisdiction through waiver of a condition that could not be waived - See paragraphs 49 to 68.

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See second Criminal Law - Topic 3531.1 ].

Criminal Law - Topic 5412

Evidence and witnesses - Witnesses - Subpoena or summons - [See both Criminal Law - Topic 3531.1 ].

Evidence - Topic 4481

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Issuance of - [See both Criminal Law - Topic 3531.1 ].

Evidence - Topic 4486

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Setting aside - Grounds - [See second Criminal Law - Topic 3531.1 ].

Evidence - Topic 4487

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Against nonparty - [See both Criminal Law - Topic 3531.1 ].

Cases Noticed:

R. v. Dawson (W.) et al. (1998), 107 O.A.C. 375; 123 C.C.C.(3d) 385 (C.A.), refd to. [para. 13, footnote 1].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1, refd to. [para. 13, footnote 2].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, consd. [para. 21].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 28].

Penetanguishene Mental Health Centre v. Ontario (2010), 260 O.A.C. 125; 2010 ONCA 197, refd to. [para. 28].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, consd. [para. 39, footnote 3].

Supermarchés Jean Labrecque Inc. v. Flamand - see Supermarchés Jean Labrecque Inc. v. Tribunal du Travail.

Supermarchés Jean Labrecque Inc. v. Tribunal du Travail, [1987] 2 S.C.R. 219; 78 N.R. 201; 9 Q.A.C. 161, refd to. [para. 62].

Telecommunications Workers Union v. Canadian Radio-Television and Telecommunications Commission et al., [1995] 2 S.C.R. 781; 183 N.R. 161, refd to. [para. 63].

Cornwall (Township) v. Ottawa and New York Railway Co. et al. (1916), 52 S.C.R. 466, refd to. [para. 67].

R. v. Regan - see Canadian Broadcasting Corp. et al. v. Batiot, P.C.J. et al.

Canadian Broadcasting Corp. et al. v. Batiot, P.C.J. et al. (1997), 158 N.S.R.(2d) 290; 466 A.P.R. 290; 113 C.C.C.(3d) 237 (C.A.), leave to appeal refused (1997), 227 N.R. 286 (S.C.C.), refd to. [para. 87].

R. v. French (1977), 37 C.C.C.(2d) 201 (Ont. C.A.), affd. [1980] 1 S.C.R. 158; 28 N.R. 100, refd to. [para. 89].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, consd. [para. 97, footnote 4].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45, refd to. [para. 107].

R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33 (C.A.), refd to. [para. 107].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, refd to. [para. 108].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 110].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 698(1) [para. 84]; sect. 699(2)(a) [para. 86]; sect. 700(1) [para. 85].

Counsel:

Michael A. Moon, Nicole Rozier and Kathy Perchenok, for the appellants;

Holly Walbourne, for the respondent, Thunder Bay Police Service;

Christopher Diana, for the respondent, Commissioner of the Ontario Provincial Police;

Nick Devlin and Sabrina Montefiore, for the respondent, Public Prosecution Service of Canada.

This appeal was heard on March 11, 2015, before Watt, Lauwers and Hourigan, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Watt, J.A., and was released on October 28, 2015.