R. v. Brennan Paving and Construction Ltd.

R. v. Brennan Paving and Construction Ltd. Collection Decisions of the Court of Appeal Date 1998-11-23 Docket numbers C24513 Judges Austin, Allan McNiece; Moldaver, Michael James; Borins, Stephen Subject Criminal Decision Content DATE: 19981123 DOCKET: C24513 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Applicant) v. BRENNAN PAVING AND CONSTRUCTION LTD. (Respondent) BEFORE: AUSTIN, MOLDAVER and BORINS JJ.A. COUNSEL: Jill Arthur For the appellant Norman A. Keith For the respondent HEARD: November 12, 1998 ENDORSEMENT [1] This is an appeal by the Crown from the decision of His Honour Judge Laing, upholding the decision of His Worship Justice of the Peace Stafford staying all charges against Brennan Paving and Construction Ltd. (“Brennan”) under the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1. The sole issue raised on appeal is whether Judge Laing was correct in holding that the Justice of the Peace did not err in law in staying the proceedings. [2] The Justice of the Peace based his decision to grant the stay on two grounds. [3] First, he found that as a result of misconduct on the part of the Ministry of Labour investigator, Brennan’s “right to remain silent” had been breached, in consequence of which Brennan had suffered “unrepairable” damage to its possible defences at trial. Second, he found that the Crown had failed in its obligation to disclose two memoranda, one being a summary of evidence gathered from the investigation, which the chief investigator had prepared for the purpose of obtaining legal advice from Ministry counsel, the other being counsel’s response to the legal advice being sought. The Misconduct of the Chief Investigator [4] The charges against Brennan arose out of a Ministry of Labour investigation into the death of a worker at a workplace operated by Brennan. Prior to charges being laid, a coroner’s inquest was conducted into the death of the worker. [5] Before the inquest commenced, counsel for Brennan (not Mr. Keith) asked the chief investigator on two occasions whether the Ministry was planning to lay charges against Brennan. On both occasions, the chief investigator provided misleading information. Knowing full well that charges were going to be laid, he advised Brennan’s counsel that the matter of charges was still under consideration. [6] The Justice of the Peace characterized that the investigator’s response as “an outright lie”, in consequence of which counsel for Brennan adopted a course of conduct at the inquest that he would not otherwise have adopted. Had counsel known the true state of affairs, he would have moved to adjourn the inquest. As it is, Brennan sought and received standing at the inquest and its counsel led evidence from one of its employees presumably on the issue of Brennan’s liability. [7] The Justice of the Peace found that as a result of the investigator’s duplicity, Brennan had given up its right to remain silent and this in turn had “caused unrepairable damage to the accused’s [Brennan’s] possible defences.” It followed, in his opinion, that the investigator’s conduct amounted to an abuse of process, which, in conjunction with the Crown’s failure to disclose the memoranda referred to earlier, warranted a stay of proceedings. [8] With respect, we are of the view that the Justice of the Peace erred in relying on the conduct of the investigator as a reason for granting the stay. [9] As indicated, His Worship found that the investigator’s misrepresentation to Brennan’s counsel caused irreparable damage to Brennan’s possible defences. That finding was based on an erroneous assumption that Brennan had been robbed of one of its basic rights, namely, the right of an accused to remain silent. As a corporate accused, Brennan had no such right. [10] On appeal, counsel for Brennan conceded that the Justice of the Peace erred in holding that Brennan’s right to silence had been undermined. He did, however, maintain that as a result of the investigator’s misstatements, Brennan had acted to its prejudice by adopting a course of conduct at the inquest that effectively deprived Brennan of its right to a fair trial. [11] In our view, there is nothing in the record to substantiate this submission. The stay application was brought at the outset of the trial proceedings, before any evidence was heard. Brennan led no evidence on the stay application to show that as a result of the testimony led at the inquest, including that of its own witness, that its right to a fair trial had been irreparably prejudiced. [12] It follows in our view, that at the very least, the ruling made by the Justice of the Peace was premature. To the extent, if any, that prejudice is revealed as the evidence unfolds at trial, Brennan may renew the stay application if it sees fit. [13] The remaining question is whether the conduct of the investigator constituted such an affront to the society’s sense of fair play and decency that the integrity of the judicial process would be undermined if the prosecution against Brennan were allowed to proceed. [14] As reprehensible as the investigator’s conduct was, on balance, we believe that society’s interest in having the charges adjudicated on the merits outweighs any affront to society’s sense of fair play and decency stemming from the investigator’s misconduct. [15] In this respect, we note that the charges are serious, arising as they do from the death of a worker at a workplace operated by Brennan. [16] As for the investigator’s misconduct, much as it was inexcusable, he did not go so far as to say that no charges would be laid against Brennan. That was an assumption made by Brennan’s counsel which, in our view, was unfounded. [17] But for this unfounded assumption, counsel for Brennan could have protected his client’s interest by raising the issue of prospective charges before the coroner and seeking an adjournment. Had this been done, the true state of affairs would, in all likelihood, have been revealed. As it is, counsel’s unfounded assumption led him to adopt a course of conduct at the coroner’s inquest which, it is now alleged, was highly prejudicial to Brennan. [18] We also note that there is no suggestion of oblique motive on the part of the investigator in misrepresenting the certainty of impending charges. There were no spurious reasons for not laying the charges prior to the inquest. Moreover, it has not been shown that the Ministry of Labour gleaned information from the inquest which it either needed or relied upon in deciding to charge Brennan. To the contrary, as the Justice of the Peace found, the decision to charge had been made before the inquest commenced. [19] Accordingly, in granting the stay of proceedings, the Justice of the Peace erred in relying upon the misconduct of the investigator and Judge Laing erred in law in concluding otherwise. Failure on the Part of the Crown to Disclose [20] After the investigator completed his investigation, he prepared a memorandum summarizing the evidence he had gathered. His purpose in doing so was to obtain a legal opinion from Ministry counsel as to whether charges should be laid. This procedure accorded with Ministry of Labour policy. [21] There is no indication that the memorandum in question contained material inconsistencies or additional facts not already disclosed to Brennan pursuant to the Crown’s disclosure obligations. As such, the investigator’s memorandum did not constitute the fruits of his investigation. Rather, it was a summary of information which Brennan already possessed. Properly characterized, the memorandum was work product which the Crown would not ordinarily be obliged to disclose. [22] Apart from Brennan’s unfounded submission that the memorandum constituted the fruits of the investigation, no other head of relevance was suggested. Accordingly, the Crown was not obliged to disclose the memorandum and the Justice of the Peace and Judge Laing erred in concluding otherwise. [23] With respect to the second memorandum, namely, the legal response prepared by Ministry counsel, on appeal, counsel for the respondent conceded that the Justice of the Peace erred in ordering its production. We agree. There was no basis in fact or law warranting the production of this document. Additional Issues [24] Evidence was led before the Justice of the Peace that a cousin of the deceased, who was employed by the Ministry of Labour, had improperly attempted to influence the investigator to lay charges against Brennan. While the Justice of the Peace found that the conduct of the deceased’s cousin may well have contravened the conflict of interest guidelines set down by the Ministry, he found that the evidence fell short of establishing any real or perceived influence. [25] The evidence supports this finding and we have not been persuaded that there is any basis for interfering with it. [26] Finally, it was submitted that because the Ministry had taken so long to perfect this appeal, we should take this into account in deciding whether or not the stay of proceedings was justified. [27] Counsel for the Ministry candidly conceded that there was no excuse for the unwarranted delay of more than two years in perfecting the appeal. Much as we are troubled by the delay, Brennan did not adduce any evidence on the appeal to show how, or to what extent, if any, it had been prejudiced by the delay. It follows, in our view, that the matter of appellate delay is best left to the presiding judge at trial should Brennan assert a breach its s. 11(b) Charter rights. CONCLUSION [28] In the result, we are of the view that there was no basis for staying the proceedings against Brennan. Accordingly, the appeal is allowed, the order staying proceedings is set aside and the matter is remitted to trial.