R. v. K.K.
Her Majesty the Queen, and
 O.J. No. 6199
Ontario Court of Justice (Provincial Division)
Fairgrieve Prov. J.
Oral judgment: February 12, 1998.
E. Winocur, for the Crown.
T. Pain, for the accused.
¶ 1 FAIRGRIEVE PROV. J. (orally): An application involving your client Mr. K..
¶ 2 MR PAIN: Yes, Your Honour.
¶ 3 THE COURT: Is he here?
¶ 4 CLERK OF THE COURT: Come forward please, Mr. K.. Have a seat in the chair here.
¶ 5 THE COURT: All right. There is no language problem?
¶ 6 MR. PAIN: He is content that we proceed without the interpreter.
¶ 7 THE COURT: All right.
¶ 8 MR. PAIN: I had ordered one, but I understand he is in 125 in the middle of a trial. He is happy that we proceed.
¶ 9 THE COURT: Yes, all right. I was just handed the papers, so I know absolutely nothing about what this is. This is an application for —
¶ 10 MR. PAIN: Disclosure and costs, Your Honour and disclosure has already been provided as of the —
¶ 11 MS. WINOCUR: The date is actually on the front of Your Honour’s — Your Honour, my friend’s application record is actually my copy, the one that we have provided to the Court, and noted on the front is the date that disclosure was given. It’s also in one of my exhibits.
¶ 12 THE COURT: Right.
¶ 13 MR. PAIN: I had forwarded a copy to the Judge’s office hoping that it would get to the right judge and someone would have had a chance to read it.
¶ 14 THE COURT: So naturally it got lost.
¶ 15 MR. PAIN: Yeah.
¶ 16 MS. WINOCUR: It’s February 4th I think is the date.
¶ 17 MR. PAIN: If Your Honour wants a few moments to read the factum perhaps I could run over to 125 and see if the interpreter is almost done. I think — he is prepared to proceed, but it might be of some assistance if the interpreter were here.
¶ 18 THE COURT: Yes. Are you planning on calling evidence?
¶ 19 MR. PAIN: I believe my friend is.
¶ 20 MS. WINOCUR: Yes, I am calling evidence.
¶ 21 THE COURT: All right. Yes. Well why don’t I read through this and maybe you can just go and let the interpreter know that as soon as he is available he should come here.
¶ 22 MR. PAIN: Thank you.
¶ 23 THE COURT: Maybe you could get a time estimate too as to how long he is going to be.
¶ 24 MR. PAIN: Sure.
¶ 25 THE COURT: Thanks.
¶ 26 THE COURT: Well I am of the view that the applicant is entitled to the order that he seeks. we have heard some evidence this afternoon about the system that the Crown has to avoid difficulties like this arising. And I don’t know that one can take judicial notice of the fact that the system usually works, But sometimes it doesn’t and on those occasions special efforts have to be made. In this case, Ms. Winocur is suggesting that, given the number of faxes that were sent to the division, the Crown has discharged their obligation to act reasonably in providing the disclosure that they admit the accused is entitled to, Detective Constable Olsen explains that he has 40 or 50 cases in his case load and he deals with matters that are brought to his attention. And in this case there was initially some confusion about who the investigating officer was. Then after that there seemed to be some faxes that went astray, or at least they weren’t brought to his attention. And then when faxes were brought to his attention, the brief apparently wasn’t available at the division, so he felt that he wasn’t in a position to comply with what was being directed. This state of affairs persisted for six or seven months. The defence in this case made repeated requests for specific items of disclosure that hadn’t been provided earlier and pieces of disclosure that everyone concedes they were entitled to from the beginning. There is no dispute here about the relevance of the material, or any reason for withholding it. Everyone agrees that the accused was entitled to it. And I think the officer agreed that the investigation was completed back on July the 22nd and it was just a matter after that of putting together the material so that they could be provided to the defence. I am of the view that for these purposes the Crown really is indivisible and it’s not satisfactory for the Crown to say it’s a really a problem with the police and that they have done everything they can do when they tell defence counsel on every court appearance that they will make another request and they make that request. At some point it seems to me their conduct is to be assessed by examining the actual results that have been achieved. And the accused, as his counsel said, has been to court ten times to achieve what ought to have been achieved after two or three appearances several months ago. It’s clear that additional costs were incurred by the applicant here, as a result not of anything that he had done, but simply as a result of the requests that his counsel had made going unanswered in the sense that they didn’t actually produce the disclosure that he was soaking. I don’t really see any reason to differ from what I stated in an earlier case — and I don’t mean to suggest that this is in any sense a leading case, it seams to be consistent with what a lot of other judges have said in comparable circumstances — but I would simply adopt and apply the statement of the law that I summarized in Di Fruscia —
¶ 27 THE REPORTER: Spelling?
¶ 28 THE COURT: It’s D-i, separate word, F-r-u-a-c-i-a.
¶ 29 Ms. Winocur submits that this is one of those rare occasions where the Crown has sought to justify their conduct and is arguing that, in fact, it was reasonable. I understand the submission that’s been made, but I just don’t agree that it conforms with the prosecutorial standard that governs the conduct of a criminal case. At some point, and whether it’s dictated by the number of unanswered faxes, or the number of requests from defence counsel, or the number of months that have past without disclosure having been produced, at some point there is a marked departure from prosecutorial standards that everyone expects will be met. Page 13 of my earlier Judgment I said the following, which I think has application to this case as well. ” In terms of characterizing the facts of the present case, I think it is clear that Mr. Denny … ” — defence counsel there — “… brought the disclosure application only as a last resort when more informal procedures which ought to have produced the additional disclosure had proved unsuccessful. I am also sure that the Assistant Crown Attorneys with whom Mr. Penny dealt at the pretrial meetings recognized that the defence was entitled to the missing notes regardless of their ultimate significance, just as Mr. Guerts did when the application was heard, I will assume that they made the effort, ineffectual or not, that they told Mr. Penny they would make to bring the matter to Constable Telfor’s attention. There appears, however, not to have been any follow up on their part and the matter was evidently allowed to slip back into a bureaucratic void after their contact with Mr. Penny. It would seem that there is no administrative procedure in the Crown Attorney’s office at the Old City Hall that would compel particular Crown counsel to take responsibility for solving such disclosure problems when he or she encounters them, or indeed to even ensure that such letters from defence counsel are acknowledged and acted on.” I understand that that isn’t the complaint in this case in the sense that the Crown sent out faxes so, in a sense, acted on repeated requests from the defence, but the fact remains that those repeated faxes didn’t achieve anything. At page is 15 I said in the earlier came, “at some point when repeated letters and ‘phone calls from defence counsel to the Crown Attorney’s office and the police officer, even after notice of the Charter application, continue to be ignored and produce nothing, the line was crossed between mere administrative inefficiency, or ineffective communication and a marked departure from acceptable prosecutorial standards”. I think that description applies to this case as well.
¶ 30 There will be an order of costs against the Crown in the amount of $500 plus GST. And that’s $535? You had a draft order. Did you want me to sign something?
¶ 31 MR. PAIN: If that would make things more efficient.
¶ 32 THE COURT: I don’t really know how the mechanics work in terms of getting your money from the Ministry. But, Ms. Winocur?
¶ 33 MS. WINOCUR: I don’t know either, Your Honour.
am prepared to accept my friend’s draft order.
¶ 34 MR. PAIN: I’m not so much concerned about the order itself as I am — I’d like not to have to come back on this order again. If Your Honour could got a date — and I am prepared to let my friend make suggestions as to how much time they need — that would be fine. At least we know that it’s not Just going over and over and over.
¶ 35 MS. WINOCUR: Well —
¶ 36 THE COURT: To set a date for trial you mean?
¶ 37 MR. PAIN: No, sorry. To set a date for when the order should be satisfied.
¶ 38 MS. WINOCUR: Well, with respect, as I understand your order, it’s like a civil judgment. I mean there is a procedure in place for that also.
¶ 39 THE COURT: Yes. I don’t think — well, not having had any personal experience in collecting on these things, but if you speak to Mr. Penny who was counsel on Di Fruscia, I don’t think there was any difficulty getting the Crown to pay because it happens so often now. I am sure they have some clerk at 720 Bay who issues the cheques upon —
¶ 40 MS. WINOCUR: There is a bureaucracy system.
¶ 41 THE COURT: — production of the order.
¶ 42 MR. PAIN: Okay. Whatever the usual standard is, then I am satisfied.
¶ 43 THE COURT: All right. Do you have a — I know in your volume here you have a draft order. Is there one that you wanted me to sign, or just rip this out, or what?
¶ 44 MR. PAIN: That would be fine, Your Honour. Do we give them some weeks to process the paper?
¶ 45 MS. WINOCUR: Your Honour, I can’t assist the Court as to how long it takes them to process these sorts of orders.
¶ 46 THE COURT: I could just say forthwith.
¶ 47 MR. PAIN: Fair enough.
¶ 48 THE COURT: All right. Well I can delete the reference to providing disclosure.
¶ 49 MR. PAIN: A pre-trial for the 18th, so perhaps the next Tuesday would be the 24th, if it could come back on the 24th [Ed. note: […] in the paragraph indicates places where the copy of this decision as received by Quicklaw was missing one or more words] […] these days.
¶ 50 MS. WINOCUR: Yes, in February?
¶ 51 MR. PAIN: Yes, February.
¶ 52 THE COURT: Sorry, 2:00 p.m., 111 court, on February the 24th?
¶ 53 MR. PAIN: Yes, please, Your Honour.
¶ 54 THE COURT: Yes.