R. v. Felderhof (J.B.), (2003) 180 O.A.C. 288 (CA)

• Judge: Carthy, Doherty and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 10, 2003
• Jurisdiction: Ontario
• Citations: (2003), 180 O.A.C. 288 (CA);2003 CanLII 37346 (NS CA);2003 CanLII 37346 (ON CA);68 OR (3d) 481;235 DLR (4th) 131;17 CR (6th) 20;180 CCC (3d) 498;10 Admin LR (4th) 229;[2003] CarswellOnt 4943;[2003] OJ No 4819 (QL);180 OAC 288;61 WCB (2d) 489

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. DE.052

Her Majesty the Queen (applicant/appellant) v. John Bernard Felderhof (respondent/respondent in appeal)

(C39168)

Indexed As: R. v. Felderhof (J.B.)

Ontario Court of Appeal

Carthy, Doherty and Rosenberg, JJ.A.

December 10, 2003.

Summary:

The defendant was charged with eight counts of violations to the Securities Act, R.S.O. 1990, c. S-5, arising out of the affairs of Bre-X Minerals Ltd. The charges included insider trading and authorizing or acquiescing in misleading press statements. On Day 67 of a "difficult" and "hard-fought" trial, the prosecution applied for a ruling on the admissibility of most of its documents. The trial judge ordered instead that the prosecution call its next witness. On Day 70, the prosecution applied for prohibition and certiorari to halt the prosecution and to order that the trial begin anew before another judge of the Ontario Court of Justice. The prosecution alleged that the trial judge lost the jurisdiction to proceed and undermined the prosecution's right to a fair trial by erring in not making certain evidentiary rulings, in not curbing the uncivil conduct of the defendant's counsel and in interfering in the conduct of the prosecution's case.

In a decision reported [2002] O.T.C. 829, the Ontario Superior Court dismissed the motion. The defendant applied for costs.

In a decision reported [2003] O.T.C. 114, the Ontario Superior Court dismissed the defendant's application. The prosecution and the defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 4005

Relations with other lawyers - General - Courteous conduct - The prosecution in a matter respecting alleged violations to the Ontario Securities Act submitted that the trial judge committed jurisdictional error in failing to curb defence counsel's uncivil conduct - The Ontario Court of Appeal upheld an application judge's ruling that the trial judge had not committed jurisdictional error - The court agreed with the following test proposed by the application judge: "Even if counsel's litigation style, as alleged by the prosecution, is abusive and sometimes personally nasty, the judge does not lose jurisdiction unless it prevents a fair trial" - The court also agreed with the application judge that this was not a case where a trial judge did nothing - The trial judge did intervene on several occasions to attempt to limit the nature of defence counsel's complaints - Like the application judge, the court was not persuaded that the prosecutors were prevented from fulfilling their duties by the conduct of defence counsel - See paragraphs 78 to 97.

Courts - Topic 554

Judges - Powers - To control court proceedings - [See Trials - Topic 2005 ].

Courts - Topic 582

Judges - Duties - To rule on evidence - The prosecution in a matter respecting alleged violations to the Ontario Securities Act submitted that the trial judge committed jurisdictional error in failing to rule on objections to the admissibility of evidence, particularly documentary evidence tendered by the defendant - This issue primarily revolved around defendant's counsel's novel argument that he could tender any document to a witness, whether or not the witness had ever seen the document or had anything to do with it, provided that the document had been disclosed to the defence but not tendered by the prosecution - He based his right to tender the documents in this fashion on the following theory - In failing to tender documents, which it conceded were relevant and authentic, as part of its examination in chief of the witness, the prosecution was implicated in an abuse of process - The Ontario Court of Appeal ruled that the trial judge did not make any jurisdictional error in failing to rule on the prosecution's objections - Postponement of the rulings did not lead to inadmissible evidence being admitted - In some cases, the document was simply marked for identification - In other cases, defence counsel backed down - See paragraphs 66 to 77.

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See Barristers and Solicitors - Topic 4005 ].

Criminal Law - Topic 22

General principles - Prosecution of crime - Functions of the Crown prosecutor, Director of Public Prosecutions and Attorney General - [See Barristers and Solicitors - Topic 4005 ].

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct (incl. counsel) - The prosecution in a matter respecting alleged violations to the Ontario Securities Act submitted that the trial judge committed jurisdictional error in failing to curb defence counsel's uncivil conduct - The Ontario Court of Appeal upheld an application judge's ruling that the trial judge had not committed jurisdictional error - The court also upheld the application judge's decision not to award costs to the defence where the behaviour indulged in by defence counsel should be discouraged, not encouraged by an award of costs - To award costs to the defence would carry the wrong message by rewarding counsel for the consequences of his unacceptable conduct - See paragraph 100.

Trials - Topic 2005

Conduct of trial - General - Judge's authority to manage the trial - The defendant was charged with eight counts of violations to the Securities Act, R.S.O. 1990, c. S-5, arising out of the affairs of Bre-X Minerals Ltd. - On Day 67 of a "difficult" and "hard-fought" trial, the prosecution applied for a ruling on the admissibility of most of its documents - The trial judge ordered instead that the prosecution call its next witness - The trial judge gave the following reasons: (1) the application would take a substantial amount of court time; (2) the application would entail much duplication of what would be heard in the trial; (3) the issue of admissibility of many of the documents would resolve itself as witnesses were called; and (4) the trial judge would be in a better position to make such determinations as he heard more evidence - The Ontario Court of Appeal affirmed an applications judge's decision that upheld the trial judge's ruling - The court discussed the scope of a trial judge's authority to generally manage the trial and whether that could include a direction to the prosecutor to call evidence in a certain order - See paragraph 65.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 3].

Marchand v. Public General Hospital Society of Chatham et al. (2000), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), refd to. [para. 12].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 20].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609; 49 C.C.L.T. 217, refd to. [para. 20].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 20].

R. v. DeSousa (1992), 142 N.R. 1; 56 O.A.C. 109; 76 C.C.C.(3d) 124 (S.C.C.), consd. [para. 31].

Sorger et al. v. Bank of Nova Scotia et al. (1998), 109 O.A.C. 130; 39 O.R.(3d) 1; 160 D.L.R.(4th) 66 (C.A.), consd. [para. 38].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, consd. [para. 41].

R. v. Torbiak and Campbell (1974), 18 C.C.C.(2d) 229 (Ont. C.A.), consd. [para. 45].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275, consd. [para. 53].

R. v. Foisy (G.) (2000), 138 O.A.C. 188; 51 O.R.(3d) 161 (C.A.), dist. [para. 65].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 118 C.C.C.(3d) 443, refd to. [para. 74].

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; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 74].

R. v. Xenos (J.) (1991), 43 Q.A.C. 212; 70 C.C.C.(3d) 362 (C.A.), refd to. [para. 74].

R. v. McMillan (G.) (2003), 176 O.A.C. 215 (C.A.), refd to. [para. 74].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), refd to. [para. 74].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 O.R.(3d) 277 (C.A.), refd to. [para. 88].

Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.), consd. [para. 95].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 176 C.C.C.(3d) 321 (C.A.), refd to. [para. 98].

Authors and Works Noticed:

Maloney, Arthur, Q.C., The Role of the Independent Bar, [1979] Law Society of Upper Canada Special Lectures 49, p. 63 [para. 94].

Martin, G. Arthur, The Practice of Criminal Law as a Career, [2002] Law Society of Upper Canada Gazette, p. 93 [para. 84, footnote 3].

Martin, G. Arthur, The Role and Responsibility of the Defence Advocate (1970), 12 C.L.Q. 376, p. 385 [para. 94].

Nagorney, Kara Anne, A Noble Profession? A Discussion of Civility Among Lawyers (1999), 12 Georgetown Journal of Legal Ethics 815, pp. 816 to 817 [para. 83]; 817 [para. 84, footnote 2].

Counsel:

David W. Scott, Q.C., Michael Code and Ian R. Smith, for the appellant;

Brian H. Greenspan, Joseph P. Groia, Stanley G. Fisher and Kevin J. Richard, for the respondent/respondent in appeal;

Milan Rupic and Riun Shandler, for the intervener, The Attorney General of Ontario;

Chris G. Paliare and Andrew K. Lokan, for the intervener, Criminal Lawyers' Association;

Paul J.J. Cavalluzzo, for the intervener, Ontario Crown Attorneys' Association.

This appeal was heard on June 18 and 19, 2003, by Carthy, Doherty and Rosenberg, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Rosenberg, J.A., and released on December 10, 2003.