MCLNugget: McGuigan ONCA

York (Regional Municipality) v McGuigan, 2018 ONCA 1062

The Issue

Are the excerpts of a user manual related to the “testing and operation” of a speed measuring device subject to disclosure under the first party regime or production under the third party regime – as well as the related issue of relevance of such records.

The Answer

The “testing and operation” instructions contained in the user manual for speed measuring devices are subject to disclosure under the first party regime. While they are not fruits of the investigation, they are “obviously relevant” and thus disclosable.

The Fine Print

The issue came to the Court of Appeal via an appeal from a certiorari decision – of interest is that in a footnote in the ruling the court commented that the “writ of certiorari is no longer issued We use the phrase the “certiorari order” as shorthand for the more cumbersome “order in lieu of certiorari” [footnote 2]. The Justice of the Peace [JP] had ordered disclosure. The Crown succeeded in quashing that order on the review. The Court of Appeal reinstated the initial order. The notable points include:

First, here the JP had the jurisdiction to “determine disclosure issues and to grant or deny disclosure order…[and] to determine whether the disclosure sought fell within the first party or third party disclosure regime” [para 63].

Second, on the issue of the availability of certiorari, the court noted that s141(4) of the Provincial Offences Act limits such a review to cases where there is a “substantial wrong or miscarriage of justice” [para 58]. Properly considered, certiorari should not have been granted.

Third, the manual related to operation and testing is “obviously relevant” and falls under first party disclosure in line with the principles of R v McNeil, 2009 SCC 3.

New & Notable: NCRMD and Section 7

R v Quenville and R v Stirling

The provisions of the Code that relate to findings of NCRMD do not violate sections 7 or 15 of the Charter.  Specifically, the Ontario Court of Appeal, 2010 ONCA 223, 2010 CarswellOnt 1773, [2010] OJ No 1235; leave refused 2011 CarswellOnt 1267, [2010] SCCA 409 rejected the argument that the failure of the Code to mandate an inquiry into whether an accused's consent to an NCRMD finding is with full knowledge of the consequences: there is no principle of fundamental justice requiring that a person who is criminally responsible be exempted from being found NCRMD.

DG Mack