



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Miller Group
    Inc., 2021 ONCA 879

DATE: 20211210

DOCKET: C68878

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Miller Group Inc. and Glenn Fernandes

Respondents

Giuseppe Ferraro, for the appellant

Norm Keith and Maciej Lipinski, for the
    respondents

Heard: September 20, 2021 by video conference

On appeal from the order of Justice Chantal
    M. Brochu of the Ontario Court of Justice, dated June 25, 2019, dismissing an
    appeal from the acquittals entered by Justice of the Peace B.I. Leaman, dated
    September 18, 2017.

Trotter J.A.:

A.

Introduction

[1]

This appeal arises from a workplace accident
    that injured two individuals.

[2]

Miller Group Inc. (hereafter Miller) was contracted
    to pave a road in Northern Ontario. Mr. Fernandes, an employee of Miller,
    supervised the job. A piece of heavy equipment, a rubber tire roller, was used in
    the paving project. The roller went out of control and it ended up in a ditch.
    The operator of the roller was hospitalized for 11 days; another employee, who
    was able to jump out of the way, suffered less serious injuries.

[3]

The incident was reported to the Ministry of
    Labour (MOL).
[1]
Investigators attended at the scene and seized the roller under the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1 (
OHSA
). Before the
    roller was inspected, a lawyer for Miller wrote to the MOL inspectors and
    alleged that the machinery had been unlawfully seized. He further directed that
    no inspection could be performed unless his client consented.

[4]

Despite the lawyers letter, the inspection
    proceeded. This involved disassembling the roller. Before releasing the roller
    back to Miller, the inspectors offered to re-assemble it. Miller declined the
    offer and gave the roller away as scrap without conducting any testing of its
    own.

[5]

Miller (as an employer) and Mr. Fernandes (as a
    supervisor) were charged with workplace safety offences under ss. 25(1) and
    27(1)(a) of the
OSHA
, respectively. Miller brought a pre-trial
Charter
application alleging infringements of its rights under ss. 8 and 11(d) of the
Charter
.

[6]

The Justice of the Peace dismissed the s. 8
    claim, but found that the conduct of the inspectors infringed s. 11(d) because:
    (a) they should have halted their inspection in light of the lawyers letter;
    (b) they failed to keep proper notes; (c) they did not follow internal
    policy manuals; and (d) their testimony was conflicting. The Justice of the
    Peace excluded the results of the inspection under either ss. 24(1) or (2) of
    the
Charter
, the precise basis being unclear. The Crown called no further
    evidence and the charges were dismissed against Miller and Mr. Fernandes.

[7]

The Crowns appeal to a judge of the Ontario
    Court of Justice (the appeal judge) was dismissed. She found that the Justice
    of the Peace made no legal errors in excluding the evidence as a remedy for the
    breach of s. 11(d) of the
Charter
. She determined that it was
    unnecessary to address the submissions of Miller and Mr. Fernandes that there
    was also a breach s. 8 of the
Charter
.

[8]

Nordheimer J.A. granted the Crowns application
    for leave to appeal under s. 131 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P. 33.

[9]

For the reasons that follow, I would allow the
    Crowns appeal and order a new trial. The Justice of the Peace erred in finding
    that the lawyers letter required the inspectors to only conduct an examination
    of the machine in the presence of the representative(s) of Miller. Neither
    Miller nor Mr. Fernandes had any right to direct the investigation into
    offences under the
OHSA
. This made inconsistencies in the evidence of
    the inspectors irrelevant for
Charter
adjudication purposes.

[10]

Similarly, the failure of the inspectors to
    observe internal policy guidelines could not amount to a violation of s. 11(d)
    of the
Charter
. Although deviations from these normative practices may
    impact on the value of the inspectors testimony on the trial proper, these
    documents had no force of law for constitutional purposes.

[11]

The Justice of the Peace also erred in finding an
    infringement of s. 11(d) of the
Charter
. He employed the wrong
    analytical framework in adjudicating what was essentially a lost or destroyed evidence
    claim. More fundamentally, neither Miller nor Mr. Fernandes established any
    prejudice flowing from the MOLs handling or inspection of the roller. To the
    contrary, Miller gave the roller away as scrap, essentially precluding further
    testing.

[12]

The appeal judge erred in law by adopting the
    reasons of the Justice of the Peace and, without further analysis, simply
    endorsed his legal errors.

B.

factual background

(1)

The Accident

[13]

The accident occurred on August 18, 2015 on a
    roadway approximately 40 kilometers outside of Thunder Bay, Ontario. On the
    same day, MOL inspectors attended at the scene, which was considered to be a
    workplace within the meaning of the
OHSA
. Inspector Thomas Grant
    photographed the scene and interviewed some of the workers. He made notes and
    issued a Field Visit Report (FVR) in which he described the investigatory actions
    he had taken. Engineer Jeff Rivard also attended and observed a broken brake
    line on the roller which he thought had been broken before the incident.

[14]

Acting under the authority of s. 54 of the
OHSA
,
    MOL employees seized the roller and took it to an unmonitored Ministry of
    Transportation property.
[2]
On August 20, 2015, the roller was moved to a private facility where it was
    disassembled and inspected.

(2)

The Letter and the Stand Down Order

[15]

On August 21, 2015, prior to the machine being
    inspected, a lawyer for Miller wrote to Mr. Grant to complain that the roller
    had been illegally seized. The letter also purported to direct the course of
    the investigation:

Our client intends to cooperate with the
    Ministry of Labours investigation of the above-noted incident.
In the
    spirit of mutual cooperation, and to ensure no spoilage of the equipment or
    evidence to be gathered, we request that no steps be taken by a Ministry of
    Labour Engineer or other technical expert without our clients knowledge and
    consent. Further, any steps taken to test the equipment involved in the
    incident, replace parts on the equipment, or any other technical aspect of the
    investigation should only be done with our clients knowledge and consent.

Further to the above, we request that copies
    of any Field Visit Reports or Orders related to this matter be copied to me
    immediately upon issue. [Emphasis added.]

[16]

It was not until August 24, 2015 that Mr. Grant
    accessed the letter on his laptop computer. Not familiar with this type of
    request, he forwarded the letter to his acting manager, Cary Roy. In the
    meantime, he claimed to have given a stand down order to Mr. Holder and Mr.
    Rivard, who were involved in testing the roller that day. The evidence of MOL
    personnel, however, was contradictory on this point. The Justice of the Peace
    found that the note-taking of Mr. Grant was lacking in certain respects. Mr.
    Grant admitted that he did not follow MOL guidelines with respect to notetaking,
    what should be included in FVRs, and when items are seized from a work site.
    Mr. Roy also received similar criticism by the Justice of the Peace.

[17]

Mr. Roys credibility was a matter of
    considerable importance to the Justice of the Peace, especially on the stand
    down issue. Phone records did not support his version of events. The Justice
    of the Peace found Mr. Roy to be nervous, defensive and evasive when being
    questioned by Millers lawyer. But it is unnecessary to go into further detail
    on this issue because, as discussed below, it did not matter at this stage of
    the proceedings. I assume for the sake of argument on this appeal that the
    evidence was inconsistent and contradictory.

[18]

Mr. Rivard, an engineer, was questioned about a
    document prepared by the Professional Engineers of Ontario (PEO) entitled
    Forensic Engineering Investigations. Among other things, the document reads:

If destructive inspection/testing is required,
    all interested parties should be provided an opportunity to review and comment
    on the inspection/testing protocol and hold points, and witness the
    inspection/testing. The aim should be to reach consensus as to the
    inspection/testing protocol. Even when all parties are present, any disassembly
    or inspection that changes the state of the evidence should be documented in
    detail for ease of future explanation.

[19]

Despite the letter from the lawyer, the
    inspection proceeded without the consent of, and in the absence of, anyone
    representing Miller. Photographs and notes were taken during the inspection
    process.

(3)

The Return of the Roller

[20]

Following the inspection, the roller was
    returned to Miller. As noted, the MOL offered to reassemble the machine. The
    offer was refused. The roller was taken out of service and given to Gary
    Steele Haulage & Grading Limited. At the time of the motion before the
    Justice of the Peace, the roller was still at this location; however, the
    engine, transmission, and wheels had been removed. There was no evidence that
    it was further inspected at the direction of Miller or Mr. Fernandes.

C.

findings in the courts below

(1)

The Justice of the Peace

[21]

The Justice of the Peace found no infringement
    of s. 8 of the
Charter
because the MOL acted within its statutory
    power under s. 54(1)(e) of the
OHSA
.

[22]

The basis for the Justice of the Peaces finding
    that there was a breach of s. 11(d) is less clear. He expressed concern
    about the failure of MOL employees to follow its own procedural manual. He was
    critical of their failure to take proper notes of the steps they took in
    furtherance of the investigation.

[23]

The Justice of the Peace also found the
    inconsistencies in the evidence relating to the stand down order to be
    troubling. He explained:

Based on the inconsistent evidence among Mr.
    Grant, Mr. Roy and Mr. Rivard, when added to that of Mr. Holder, this
    Court is left in great doubt as to the credibility and reliability of each of
    the MOL employees who testified on this motion.
This doubt goes directly to
    the heart of the s. 11(d) motion made by Miller
. [Emphasis added.]

[24]

The Justice of the Peace acknowledged that the
OHSA
did not require a representative of the employer to be present for the
    inspection of the roller. He nonetheless concluded that fairness dictated that
    should have been so, especially in light of the lawyers letter. He further
    found that Mr. Rivards failure to follow the PEO guidelines:

contributed to the defendants being deprived
    of the opportunity to participate in the inspection of the seized machine to
    the extent that spoilation occurred. The machine, once inspected on August 24
    by disassembly of some of its components, was no longer in the state it was on
    August 18 when it was seized.

[25]

The Justice of the Peace also addressed the
    absence of any evidence of prejudice to Miller and Mr. Fernandes:

This Court acknowledges that it
seems odd
that Miller, through Mr. Fernandes, when given the opportunity to have the
    machine put back together chose not to do so, nor did they have the machine
    tested or examined, especially the transmission since that component was a
    potential problem with it according to some of Millers employees at the work
    site.
However, in this Courts view, those actions or inactions do not
    undermine the defendants rights under s. 11(d) of the
Charter
.
    [Emphasis added.]

[26]

On the issue of remedy, the Justice of the Peace
    refused to stay the proceedings. He said, Again, the onus rests on the moving
    party to show on a balance of probabilities that the admission of the evidence
    would bring the administration of justice into disrepute, as noted in s. 24(2)
    of the
Charter
. He relied on
Ontario (Ministry of Labour) v. JR
    Contracting Property Services et al
.
, 2011 ONCJ 316, in which
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 was applied. He concluded that,
    [f]ollowing the
Grant
analysis, the impact of the breach denied
    Miller and Mr. Fernandes the opportunity to make full answer and defence. He
    ultimately concluded that the admission of the evidence would bring the
    administration of justice into disrepute.

(2)

The appeal judge

[27]

The appeal judge took a different approach to
    the s. 11(d) claim. She placed great reliance on the Supreme Court of Canadas
    decision in
R. v. Harrer
, [1995] 3 S.C.R. 562 and this courts
    decision in
R. v. Spackman
, 2012 ONCA 905, 300 O.A.C. 14, which hold
    that a judge may exclude evidence, not because it was
obtained
in a
    manner that infringed the
Charter
, but because its
admission
into evidence would render the trial unfair.

[28]

After discussing this line of authority, the
    totality of the appeal judges analysis of the issue is found in paras. 64 and
    65 of her reasons:

The foregoing illustrates that Justice of the
    Peace Leaman considered the actions or inactions for which he found amounted to
    an infringement of the Respondents
Charter
right resulted in actual
    prejudice to the Respondents. A review of the Reasons certainly does not
    translate to a matter in which the Court found that the actions or inactions
    amounted to an automatic breach.

This is a matter in which the credibility and
    reliability of each of the MOL employees was factored and played a substantial
    role in the Courts decision; Justice of the Peace Leaman in his analysis and
    findings indicated that this doubt goes directly to the heart of the s. 11(d)
    motion.
It was open to the trial judge to conclude that the MOL employees
    actions and inactions amounted to a breach and therefore there is no basis for
    interfering with his decision
. [Emphasis added.]

[29]

On the issue of remedy, despite the language of
    the Justice of the Peace reproduced in para. 26, above, the appeal judge found
    that the evidence of the inspection had been excluded under s. 24(1) of the
Charter
,
    not s. 24(2). However, in view of how I would dispose of the appeal, this
    finding is inconsequential.

D.

analysis

(1)

Introduction

[30]

The Justice of the Peace erred in finding that
    the
Charter
rights of Miller and Mr. Fernandes were infringed by the
    manner in which the investigation was conducted. The appeal judge erred in law in
    upholding this decision.

[31]

The root of the problem stemmed from the
    lawyers letter and the effect given to it by the Justice of the Peace. This
    erroneous treatment of the letter spawned a cascade of further errors. For
    instance, testimonial inconsistencies associated with sharing the stand down
    order and the adequacy of the inspectors note-taking, while potentially
    relevant at trial, were not capable of supporting a
Charter

violation.
    Nor could a failure to follow internal protocols sustain such an infringement.

[32]

Most importantly, the courts below erred in
    granting (the Justice of the Peace) and upholding (the appeal judge) a
Charter

remedy in the absence of evidence that Miller or Mr. Fernandes suffered any
    prejudice.

(2)

No Right to Direct the Investigation

[33]

As noted above, the lawyers letter insisted on
    the rights of knowledge and consent in the investigative process. Presumably
    based on the evidence of Mr. Rivards failure to follow PEO guidelines, this
    assertion morphed into an insistence on the right to be present during the
    inspection. The lawyers letter never made such an extravagant claim.

[34]

In the criminal law context, the right to make
    full answer and defence in s. 11(d) of the
Charter
does not
    extend so far:
R. v. Darwish
, 2010 ONCA 124, 100 O.R. (3d) 579, at
    paras. 29-31. An accused person does not have a constitutional right to direct
    the conduct of a police investigation of which she or he is the target:
Spackman
,
    at para. 108. The police are not required to obtain the consent of the accused
    person before taking investigative steps. An accused person has no right to
    insist that further or other investigative steps be taken. Nor are the police
    required to permit the target of investigation to be present during the
    inspection or testing of physical evidence.

[35]

I use as an example a case of dangerous operation
    of a conveyance (i.e., a motor vehicle) causing bodily harm (
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 320.13(2)). The driver loses control of a vehicle and
    ends up in a ditch. The driver is seriously injured, but their passenger
    escapes with less serious injuries. Once the vehicle is lawfully seized, the
    police do not require the consent of the driver and/or owner of the vehicle to conduct
    a mechanical inspection of the vehicle. There is no entitlement to be present
    during the inspection of the vehicle. Instead, the obligation of the police is
    to preserve items so that they may be tested or examined by the accused:
R.
    v. La
, [1997] 2 S.C.R. 680, at paras. 17 and 20. It should be no different
    with
OHSA
investigations.

[36]

There are strong policy reasons for this
    conclusion. Criminal investigations carry the potential for much more
    significant consequences than
OHSA
investigations. If the former does
    not attract such a right, no such right should exist in the latter context. It
    would be unreasonable to conclude that the subjects of
OHSA
investigations have
Charter
rights above and beyond those afforded to
    subjects of true criminal investigations.

[37]

Moreover, as the Crown submits, a requirement of
    knowledge and consent, let alone presence, could thwart or stall timely
    investigations, potentially endangering the very people the
OHSA
is
    meant to protect (i.e. workers) and the public in general.

[38]

The reach of the
OHSA

is broad.
    Section 1 of the Act defines a workplace as any land, premises, location or
    thing at, upon, in or near which a worker works. Investigators must be permitted
    to respond to workplace incidents swiftly and efficiently. As Nordheimer J.A.
    said in granting leave to appeal in this case, at para. 16: One can
    think, for example, of accidents involving collapsed cranes, collapsed
    scaffolding, elevator failures, and a host of other accidents that involved the
    operation of all sorts of pieces of equipment. Serious disruption to the
OHSA
mandate could result if investigators were constitutionally required to
    accommodate the type of request made in this case.

[39]

Consequently, the Justice of the Peace and the
    appeal judge erred in finding a constitutional right to participate in the
    examination of the roller. It did not amount to an infringement of s. 11(d) of
    the
Charter
.

[40]

Relatedly, the Justice of the Peace also
    identified his concerns with the credibility of MOL inspectors, related to
    their divergent evidence on whether a stand down order was made, and whether
    it was in fact communicated to those involved in the inspection of the roller. In
    the criminal context, the credibility of police officers is often relevant to
    the adjudication of
Charter
claims. The who did what and why or why not
    are essential to
Charter

claims. In determining whether rights
    have been infringed, trial judges are often called upon to resolve credibility
    issues as between police officers, and between the police and the accused
    person. Failing to do so may amount to a fatal error. In
R. v. McCarthy
(1996), 91 O.A.C. 348 (C.A.), revd [1996] 2 S.C.R. 460, a new trial was
    ordered because the trial judge failed to resolve credibility issues on a s. 8
Charter
    voir dire
on the issue of whether the search was conducted in a reasonable
    manner.

[41]

This is not such a case. As discussed above, the
    question of whether the inspectors should have bowed to the lawyers letter was
    not a legitimate
Charter
claim. Accordingly, the credibility of the
    inspectors on this issue was immaterial at this stage of proceedings. It should
    not have factored into the decision on whether s. 11(d) of the
Charter
had been infringed.

[42]

Similarly, the Justice of the Peace and the
    appeal judge were troubled by the failure of the MOL to follow its own manual
    or guidelines, as well as Mr. Rivards failure to follow PEO guidelines. Although
    these failings may be relevant to the credibility of these witnesses and their
    competence in conducting the inspection, these are issues to be considered by
    the trier of fact. The underlying manuals/documents that were seemingly ignored
    by the inspectors do not attain the status of legal authority upon which a
Charter
breach may be founded: see
R. v. Jageshur

(2002), 169
    C.C.C. (3d) 225 (Ont. C.A.), at paras. 50-53;
R. v. Dallas
,
    2002 BCSC 760, at paras. 104-5.

(3)

The Correct Analytical Framework

[43]

Both courts below erred in their methodological
    approach to the claim that the disassembly of the roller amounted to a breach
    of s. 11(d) of the
Charter
. Ultimately, this was a case of lost or
    destroyed evidence. The procedure for adjudicating these types of claims has
    long been established. Lost or destroyed evidence claims are governed by ss. 7
    and 11(d) of the
Charter
, tied to an individuals right to a fair
    trial and right to make full answer and defence. In this case, both courts
    below erred in finding a breach of s. 11(d) in the absence of a finding of
    prejudice. Moreover, the appeal judge further erred in relying on
R. v. Harrer
as a route to exclude the evidence.

(a)

The Appropriate Legal Principles: the Lost
    Evidence Regime

[44]

As part of its disclosure obligations under s. 7
    of the
Charter
, the Crown has a duty to preserve relevant evidence:
R.
    v. Egger
, [1993] 2 S.C.R. 451, at p. 472;
La
, at para. 17. When
    relevant evidence is lost or destroyed, the Crown must satisfy the court that
    it was not lost or destroyed as a result of unacceptable negligence:
La
,
    at para. 20;
R. v. Abreha
, 2019 ONCA 392, at para. 11;
R. v. Hersi
,
    2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 26;
R. v. Stinchcombe
,
    1994 ABCA 113, 88 C.C.C. (3d) 557, affd [1995] 1 S.C.R. 754. If the Crown satisfies
    this threshold, s. 7 has not been breached; conversely, a failure to establish
    that the destruction was not due to unacceptable negligence will amount to an
    infringement of s. 7. Depending on the circumstances, it may also amount to an
    abuse of process:
La
, at para. 23.

[45]

In order to obtain a stay of proceedings, it
    must be established that the loss or destruction of evidence compromises the
    ability of the accused to make full answer and defence, or that irreparable
    harm would be caused to the integrity of the justice system if the prosecution
    were allowed to continue:
La,
at para. 24;
R. v. Bero
(2000), 137 O.A.C. 336, 151 C.C.C. (3d) 545, at para. 42. However, [a] stay of
    criminal proceedings is the appropriate remedy only in extraordinary
    circumstances:
Hersi
, at para. 25.

(b)

The Timing of the Application and the Need for
    Actual Prejudice

[46]

The timing of the application is critical.
    Generally speaking, a motion for a stay based on lost or destroyed evidence
    should not be brought at the outset of the trial. It should be brought at the
    end of trial. This was addressed in
Bero
, where the police
    relinquished control of a vehicle that was subsequently sold to and destroyed
    by an auto wrecker. The trial judge entertained a motion to stay proceedings as
    a pre-trial motion. As Doherty J.A. said, at para. 18:

The trial judge should not have ruled on the
    motion at the outset of the trial. This Court has repeatedly indicated that
except
    where the appropriateness of a stay is manifest at the outset of proceedings
,
    a trial judge should reserve on motions such as the motion brought in this case
    until after the evidence has been heard.
The trial judge can more
    effectively assess issues such as the degree of prejudice caused to an accused
    by the destruction of evidence at the end of the trial
. [Emphasis added.]

See also
R. v. Knox
(2006),
    80 O.R. (3d) 515 (C.A.), at para. 26.

[47]

In this case, the appropriateness of a stay was
    not manifest at the outset of the proceedings for the simple reason that
    there was no evidence that the right to make full answer and defence had been
    impaired by the conduct of the investigators. Miller and Mr. Fernandes failed
    establish any prejudice at all. Miller refused the offer to reassemble the
    roller and gave it away for scrap without further inspection.

[48]

Without evidence of prejudice, there can be no
    remedy: see
Knox
, at para. 32 (where one vehicle was destroyed and
    another repaired before they could be inspected by the defence); and
R. v.
    Murray
(1994), 75 O.A.C. 10, at p. 3 (the defence failed to make a timely
    request to inspect the vehicle and no prejudice was established in any event).
    This same approach has been applied in cases prosecuted under the
OHSA
.
    In
Ontario (Ministry of Labour) v. Lee Valley Tools Ltd.
, 2009 ONCA
    387, 264 O.A.C. 213, Lang J.A. said, at para. 32: Actual prejudice cannot be
    presumed or inferred from the mere fact of lost evidence without more.

[49]

In both
Bero
, at para. 29 and
Knox
,
    at para. 29, this court recognized that failure to pursue disclosure with
    reasonable diligence may weigh against a claim that the Crowns failure to
    preserve evidence resulted in a breach of s. 7
Charter
rights. In this
    case, the lawyers letter, albeit misguided, was a timely attempt to exert some
    control over the integrity of the roller. However, this was all undone by the manner
    in which the roller was disposed of  something entirely of Millers own doing.

[50]

Both the Justice of the Peace and the appeal
    judge erred in not following this approach dictated in
Bero
and
    subsequent decisions. The motion should not have been addressed at the
    beginning of the trial. Moreover, even though the Justice of the Peace refused
    to stay the proceedings, there was no basis to grant any remedy without
    evidence that the right to full answer and defence had been compromised by the
    MOLs handling of the roller. At best, the Justice of the Peace speculated on
    the issue.

(c)

The Reliance on
Harrer
was Misplaced

[51]

By the time the case was argued in the Ontario
    Court of Justice, Miller and Mr. Fernandes had recalibrated their approach.
    They persuaded the appeal judge to analyze their claims through the lens of
R.
    v. Harrer
.
[3]
But nor was this a viable route to exclusion of the evidence in this case.

[52]

Harrer
involved
    an application to exclude evidence that was obtained in the United States by
    local police officers. Because they were not acting as agents of Canadian law
    enforcement officials, the actions of the foreign officers could not amount to
    a
Charter
infringement. As noted above,
Harrer
recognized
    that trial judge may exclude evidence, not because it was obtained in a manner
    that infringed the
Charter
, but because its admission would render the
    trial unfair. The
Harrer
Court was divided on whether it is necessary
    to resort to s. 24(1) of the
Charter
in these circumstances; however,
    it is now understood that s. 24(1) is now the preferred route to exclusion: see
R. v. White
, [1999] 2 S.C.R. 417, at paras. 86-89,
per
Iacobucci J.;
Spackman
, at paras. 101-2.

[53]

Purporting to apply this line of cases, the
    appeal judge noted that the Justice of the Peace found that the evidence was
    not obtained in an unconstitutional manner; specifically, although there were
    no direct breaches of
Charter

rights in testing the machine,
    [t]he unfairness would result in allowing the evidence to be introduced at
    trial given the manner in which it was obtained and not affording the
    Respondents the ability to participate in the inspection.

[54]

Resort to the
Harrer
line of cases was inappropriate
    in this case. It amounted to a circumvention of the principles in
Darwish
and
Spackman
. As noted above, those cases held that there is no right
    of an accused person to direct an investigation. Purporting to apply
Harrer
,
    the appeal judge achieved the opposite result by justifying a
Charter

remedy for this very reason.

[55]

Even if the
Harrer
line of cases was
    applicable, Miller and Mr. Fernandes run into the same problem  there was no
    evidence of prejudice to their right to make full answer and defence. In
Spackman
,
    Watt J.A. held that, at para. 103: The remedy of evidentiary exclusion under
    s. 24(1) is not for the asking. An accused who seeks this remedy must establish
    a breach of his or her
Charter
rights: the right to a fair trial in
    accordance with ss. 7 and 11(d) of the
Charter
. Miller and Mr.
    Fernandes failed to do so. Any prejudice they suffered was self-inflicted 
    they declined the offer to have the roller reassembled and then they got rid of
    it. The Justice of the Peace found that this conduct seemed odd. In fact, it
    was fatal to any claim to
Charter
relief.

E.

the appropriate remedy

[56]

In the event that it is successful, the Crown
    requests an order for a new trial, pursuant to sections 121(b)(i), 126(1), and
    134 of the
Provincial Offences Act
.

[57]

Counsel for Miller and Mr. Fernandes submit
    that, if the Crown is successful, the case should be remitted to the appeal
    court so that its argument under s. 8 of the
Charter
may be
    determined. As noted in para. 7 above, the appeal judge found that it was
    unnecessary to address this issue.

[58]

In my view, it is not
    appropriate to remit this case back to the appeal court for further
    consideration. It was open to Miller and Mr. Fernandes to raise the s. 8
Charter

issue before us in an effort to uphold the
    order made by the appeal judge.

[59]

A similar issue arose in
R. v. Flis
(2006), 205 C.C.C. (3d) 384 (Ont. C.A.). In that case, this court heard a
    summary conviction appeal brought by the Crown under the
Criminal Code
.
    The respondents had been convicted at trial. The summary conviction appeal
    court set aside the convictions, but then entered a stay of proceedings based
    on delays in the appeal process. The Crown sought leave to appeal to this
    court.

[60]

This court granted leave to appeal, allowed the
    appeal, and restored the convictions. The respondents requested that the case
    be remitted to the summary conviction appeal court to deal with a host of
    issues the summary conviction appeal court did not address. This request was
    denied. As Moldaver J.A. (as he then was) said at para. 55:

It is common ground that in the context of
    this Crown appeal, the respondents may raise additional alleged errors by the
    trial judge in an effort to sustain the order of the summary conviction appeal
    judge. It is further acknowledged that this court may consider and decide the
    alleged additional errors insofar as they relate to conviction: see

R.
    v. Devitt
(1999), 139 C.C.C. (3d) 187 (Ont. C.A.).

[61]

The court decided that it was in as good a
    position to address the additional issues. Proper materials were before this
    court. Moreover, remitting the case to the summary conviction appeal court
    would have contributed to an appalling delay in the pace of the proceedings.

[62]

As already noted, Miller and Mr. Fernandes could
    have litigated the s. 8
Charter

claim in this court. They chose
    not to do so. The issue was not addressed in their factum. It was only at the
    conclusion of his oral submissions that counsel for the respondents made this
    request.

[63]

I would decline to
    remit the case back to the appeal judge. Instead, I would order a new trial.
    Like
Flis
, this case has moved at a very slow pace, dating back
    to August of 2015, when the accident occurred. By allowing the appeal, the
    orders of both the Justice of the Peace and the appeal judge would be set aside
    in their entirety. If the Crown determines that it is still in public interest
    to re-prosecute this case more than six years after the fact, Miller and Mr.
    Fernandes may renew their s. 8
Charter
claim at the new trial, if so advised.

F.

DISPOSITION

[64]

I would allow the appeal and order a new trial.

Released: December 10, 2021 D.W.

G.T. Trotter
    J.A.

I agree. David
    Watt J.A.

I agree. M.L.
    Benotto J.A.





[1]
In
    2019, the Ministry of Labour became known as the Ministry of Labour, Training
    and Skills Development. Given that the incident in question extends back to
    2015, and because the courts below made repeated references to the Ministry of
    Labour, it is convenient to maintain the same terminology.



[2]
The
    fact that the yard was unmonitored was a point that was emphasized by Miller
    and Mr. Fernandes in this litigation. It was also mentioned by the Justice of
    the Peace and the appeal judge. However, the significance of this feature of
    the evidence is unclear. There was no evidence adduced that the machine was
    tampered with after it was seized.



[3]
In their Factum, Miller and Mr. Fernandes submit that the Justice
    of the Peace relied upon
Harrer
and
Spackman
in reaching his decision.
    However, there is no reference to these authorities in his reasons.


