PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Martín, 2015 NSPC 57
Date: 2015-08-24
Docket: 2276770-2276795
Registry: Pictou
Between:
Her Majesty the Queen
v.
Darren Michael Martin
DECISION ON APPLICATION FOR DISCLOSURE
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Judge: |
The Honourable Judge Del W. Atwood |
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Heard: |
24 August 2015 in Pictou, Nova Scotia |
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Charge: |
Paras. 239(1)(a) and (d) of the Income Tax Act; paras. 327(1)(a), (c), and (d) of the Excise Tax Act. |
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Counsel: |
Shaun O’Leary for the Public Prosecution Service of Canada Darren Michael Martin, self-represented |
By the Court:
[1] Darren Michael Martin has filed with the court a written application, addressed to me, seeking to compel the Public Prosecution Service of Canada to disclose evidence which Mr. Martin considers vital to his defence against charges under the Income Tax Act and Excise Tax Act.[1]
[2] For the reasons that follow, I dismiss Mr. Martin’s application for disclosure.
[3] I will provide a brief history of this case.
[4] Mr. Martin was arraigned in this court on 7 March 2011 on charges listed in information number 625987. The prosecution elected to proceed summarily.
[5] After a number of adjournments, and after Mr. Martin refused to plead to the charges, the court entered not-guilty pleas in accordance with sub-s. 602(2) of the Criminal Code. Mr. Martin made a number of largely unsuccessful pre-trial applications, mostly either to quash his charges or to compel disclosure from the prosecution. My decisions on those applications are reported at 2012 NSPC 73, 2012 NSPC 76, 2012 NSPC 92, 2012 NSPC 115, 2013 NSPC 21, 2013 NSPC 34, and 2013 NSPC 39.
[6] The trial was heard by me on 17-21 June 2013. Although Mr. Martin remained self-represented throughout—save on one occasion when he appeared with an agent who was of no assistance and who was not permitted to act further—the court appointed Mr. Stephen Robertson of Nova Scotia Legal Aid as amicus curiae to assist the court in dealing with issues of merit, rather than the non-justiciable issues raised by Mr. Martin.
[7] The trial commenced as a voir dire to determine the constitutionality of warrantless production demands made by and warranted searches carried out by officials of the Canada Revenue Agency. At the conclusion of that hearing, due almost entirely to the highly effective legal arguments raised by the amicus, and due to the candour of the prosecutor, I found that Mr. Martin’s right to be secure from unreasonable search and seizure had been infringed. My reasons are reported at 2013 NSPC 49. Although I had invited the prosecutor—who is not the prosecutor before the court today—to submit arguments as to an appropriate remedy pursuant to R. v. Grant 2009 SCC 32, the prosecutor declined to do so, and took the position that, should the court conclude that a s. 8 Charter violation had occurred, the only appropriate remedy would be the exclusion of evidence. Based on that concession, I excluded the challenged evidence obtained without warrant; I then proceeded to review the sufficiency of the ITO upon which the challenged warrant was based with the illegally obtained evidence redacted from it. I found that the ITO, as redacted, would not have contained sufficient information to ground a lawful search warrant. I excluded from evidence the documents seized from Mr. Martin under warrant. The prosecution closed its case at that point and the court dismissed the charges. My decision regarding the sufficiency of the redacted ITO is reported at 2013 NSPC 50.
[8] The prosecution appealed my decision pursuant to the provisions of s. 813 of the Code.
[9] That appeal was heard on 17 February 2014. After the passage of some time, the summary-conviction-appeal court allowed the appeal and ordered a new trial; that decision is reported at 2015 NSSC 8.
[10] Mr. Martin, in turn, appealed that decision to the Court of Appeal pursuant to the provisions of s. 839 of the Code. I do not believe that the case has been inscribed for hearing as yet.
[11] In his written application dated 4 August 2015, which was brought to my attention late last week, Mr. Martin seeks an array of disclosure from the prosecution.
[12] I dismiss the application as I find that this court has no jurisdiction to deal with it. Mr. Martin is in the wrong court. While a trial court is typically the proper venue for advancing applications for Charter relief, the status of this court at this time as a trial court is notional only; this is because the issue of whether there will be a re-trial remains to be settled in the Court of Appeal. What would be the point of this court ordering today that the prosecution turn over additional disclosure? Answer: no point. Even if ordered disclosed—assuming for the sake of argument that what Mr. Martin seeks exists in a fashion capable of being disclosed—any new evidence would not get to go before the Court of Appeal, absent a fresh-evidence application under R. v. Palmer, [1980] 1 S.C.R. 759; and if not put before the Court of Appeal, what good would it do for Mr. Martin to have it before the question of whether there should be a new trial winds up getting settled?
[13] Pursuant to sub-s. 839(2) of the Code, the provisions of para. 683(1)(a) (which would allow an appeal court to order the production of evidence) apply to Mr. Martin’s appeal, and so I believe that it is the Court of Appeal that is the court of competent jurisdiction at this point in time to hear and rule on disclosure-related issues.
[14] If the eventual judgment of the Court of Appeal were to be the reversal of the decision of the summary-conviction-appeal court, then there would be no re-trial. If the summary-conviction-appeal judgment were to be affirmed, then, and only then, would the matter return here for trial (I would note here parenthetically that the order out of the summary-conviction-appeal court did not address who would hear the retrial, so that the default under sub-s. 822(2) of the Code would be a judge other than me. Given the limited findings which I made at trial, I feel that there would be no reasonable-apprehension-of-bias grounds that would prevent me from hearing a re-trial. The barrier is the statute and the fact that there was nothing in the summary-conviction-appeal order addressing the issue. It remains to be seen whether this might be dealt with in the Court of Appeal.)
[15] Even if I were to be found wrong on the issue of whether this is a court of competent jurisdiction for the purposes of entertaining Mr. Martin’s application, I still would not grant the application, as Mr. Martin is seeking things and raising arguments that the court dealt with conclusively and finally in Mr. Martin’s many pre-trial applications.
[16] The unfortunate backwards irony here is that, notwithstanding Mr. Martin’s protests against income taxation, it remains clear to me from the evidence that I heard at Mr. Martin’s trial that he was paying it. Whether in the amounts or at the times stipulated by law are questions that would have to be settled at trial, should there be another one; but the simple fact is that Mr. Martin was reporting income and remitting tax, all on a regular basis—which leads me to believe that this is a situation that might have been worked out satisfactorily years ago, had Mr. Martin sought the advice and assistance of legal counsel.
[17] In his field of expertise, Mr. Martin does work of breathtaking beauty. His artistry in metalwork is almost without compare.
[18] However, in the field of legal analysis and advocacy, Mr. Martin’s work is deficient.
[19] If represented by counsel, Mr. Martin would have the constitutional assurance of effective and competent representation. Self-represented, he has no such assurance.
[20] Mr. Martin informs me in his written application that he has obsessed over this case to the extent that it has required him to spend a great deal of time away from his business. That represents a substantial amount of lost revenue which would undoubtedly have paid for excellent legal representation many times over.
[21] I cannot compel Mr. Martin to hire a lawyer. What I can do is ensure that Mr. Martin’s time, and that of the court, not be expended in any more unproductive efforts.
[22] As I have ruled already, the court dismisses Mr. Martin’s application, and the court will hear no further applications by Mr. Martin until the appeal has been determined. The outcome of the appeal will decide what might have to be done next and who might have to do it.
JPC
[1] [1] At the commencement of proceedings this morning, the prosecutor asked that, prior to making my “comments”—known in most courtrooms as a “judgment” or “decision”—I consider the applicability of sub-s. 822(2) of the Criminal Code. I was the judge who heard Mr. Martin’s trial, and my decision to acquit Mr. Martin was the subject of a successful summary-conviction appeal by the prosecution; as there was no direction in the order of the summary-conviction-appeal court regarding who should hear the retrial, sub-s. 822(2) of the Code would require that the re-trial be heard by someone other than me. I advised the prosecutor that I was most certainly aware of that provision, and my written reasons addressed it. Ultimately, it is my view that I do not have the jurisdiction to hear Mr. Martin’s application, and I do not believe that there would be anything in excess of jurisdiction in my making a decision confirming that I am without jurisdiction. In any event, Mr. Martin’s application was addressed to me, I do not wish to inflict this case on any other judge unless necessary, and the sooner this application should get dealt with, the better.