COURT OF APPEAL FOR ONTARIO
DATE: 2006-11-30 DOCKET: M33090 C43448
BEFORE: FELDMAN, SIMMONS and BLAIR JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
LAWRENCE MCNEIL Appellant
COUNSEL: Marc E. Schiffer for the moving party Lawrence McNeil Rick Visca for the respondent, the Attorney General of Canada Carol Brewer for the Attorney General of Ontario 3rd Party Record Holder Steven Boorne for the Chief of the Barrie Police Service 3rd Party Record Holder Joanne Mulcahy for Rodney Hackett (Intervenor) Gary R. Clewley for Matthew Marshall (Intervenor)
HEARD: April 27, 2006
A motion for production on a pending appeal from convictions entered by Justice Jon-Jo Douglas of the Ontario Court of Justice, on May 3, 2004.
SIMMONS J.A.:
I. Overview
[1] Lawrence McNeil was convicted of various drug-related offences on May 3, 2004. He brings this motion in the context of an appeal from these convictions. The motion is framed as an O’Connor[^1] application to obtain records in the hands of the Provincial Crown and the Barrie Police Service relating to criminal charges and police discipline proceedings against the Barrie police officer who arrested him and whose testimony was accepted by the trial judge. The appellant says he requires the records to assist him in developing material for an application to admit fresh evidence on appeal.
[2] The offences of which the appellant was convicted include possession of cocaine for the purpose of trafficking and trafficking in marijuana. Although some of the offences of which the appellant was convicted would ordinarily be prosecuted by the Provincial Crown, in this case, all of the prosecutions were conducted by the respondent, the Federal Crown.
[3] The records Mr. McNeil is seeking relate to pending charges under the Criminal Code, R.S.C. 1985, c. C-46, and the Police Services Act[^2], R.S.O. 1990, c. P.15, (collectively “the pending charges”) against Barrie police officer Rod Hackett, as well as to guilty plea proceedings under the Police Services Act involving P.C. Hackett and Barrie police officer Mathew Marshall.
[4] The pending Police Services Act charges include allegations that P.C. Hackett (the “arresting officer”) was a cocaine user around the time of the appellant’s arrest. The pending Criminal Code charges against the arresting officer and the guilty plea proceedings involve allegations of dishonesty, which the appellant claims are linked to the arresting officer’s involvement with drugs.
[5] In accordance with the directions of an appeal management judge, counsel for the record holders provided inventories of the documents in their possession. Although the respondent Federal Crown has not seen the records in issue, it made submissions resisting their production. At the hearing, counsel for the Barrie Police Service claimed a privacy interest in its records. In addition, counsel for both police officers made oral submissions[^3] opposing a production order.
[6] At the hearing, the parties were uncertain of the proper relationship between the test in R. v. Trotta[^4] (dealing with the Crown’s disclosure obligations on appeal) and the O’Connor test (dealing with disclosure of records involving third party privacy interests at trial) when dealing with a motion on an appeal for disclosure of records subject to a third party privacy claim. Further, the panel had concerns about whether an O’Connor-type procedure[^5] is even necessary in relation to all of the records the appellant is seeking.
[7] The issues requiring consideration are therefore the following:
i. Where an appellant seeks production of documents for the purposes of an appeal, what is the relationship between the Trotta test and the O’Connor test;
ii. do the records in issue meet the applicable relevancy threshold for production; and
iii. is an O’Connor-type procedure required in relation to any of the records that meet the applicable relevancy threshold for production.
[8] For the reasons that follow, I have concluded that on a motion brought in the appellate context for production of records subject to a third party privacy interest, the first issue for determination is whether the Trotta relevancy threshold has been satisfied. It is only once it has been determined that the Trotta threshold has been satisfied that the question of whether a third party privacy interest should trump an appellant’s claim for disclosure should be considered.
[9] I have also concluded that, subject to verifying that they contain information that there is a reasonable possibility will assist in developing fresh evidence that would be admissible on appeal, some of the records in the hands of the Provincial Crown and the Barrie Police Service meet the Trotta relevancy threshold. Concerning these records, I have concluded that an O’Connor-type procedure is unnecessary for most of the records in the hands of the Provincial Crown. Finally, I have concluded that further submissions are required in relation to whether an O’Connor-type procedure is required for the records in the hands of the Barrie Police Service.
II. Background
i) The trial
[10] The appellant faced six charges at trial: trafficking in marijuana, possession of marijuana for the purpose of trafficking, possession of cocaine for the purpose of trafficking, possession of cocaine, obstructing a peace officer, and possession of the proceeds of crime ($165).
[11] For the purposes of this motion, the trial evidence that is significant is the evidence relating to the appellant’s arrest. Although there is other evidence that the appellant claims was important to the credibility assessments at trial, I consider it unnecessary to review that evidence in these reasons.
a) The evidence for the Crown
[12] The arresting officer was the first witness to testify at trial. He said that on August 15, 2003, just after 8:00 p.m., he saw the appellant, whom he knew, walking down the street. Shortly thereafter he observed a second male hand the appellant some money; the appellant then handed the second male an unknown object. When the arresting officer got out of his car, the second male dropped the unknown object on the ground and began to walk away. After picking up the object, which appeared to be a baggie of marijuana, the arresting officer arrested the appellant and told the second male to stand still. On searching the appellant, the arresting officer found a second baggie of marijuana, a cell phone and $165.
[13] The arresting officer testified that, after handcuffing the appellant, he noticed the appellant chewing on little baggies containing crack cocaine. It appeared to him that the appellant was trying to break the baggies and swallow the cocaine. A struggle ensued during which the arresting officer attempted to prevent the appellant from swallowing the cocaine. Shortly after the struggle began, P.C. Marshall arrived on the scene and joined in the fracas. Eventually, three broken baggies containing cocaine came out of the appellant’s mouth. The appellant was transported to the hospital by ambulance and the second male was arrested.
[14] P.C. Marshall testified and essentially confirmed the arresting officer’s version of the events, as did officers Dorian and Scott who also arrived on the scene while the struggle was underway. However, P.C. Marshall’s evidence diverged from the arresting officer’s evidence in some respects.
[15] Significantly, P.C. Marshall said that when he arrived on the scene, he observed that the appellant was in custody, noticed the appellant had cocaine in his mouth and told him to spit it out. When the appellant resisted and started chewing, he put his hands on the appellant’s neck and began struggling with him. P.C. Marshall said he “made [the arresting officer] aware of his findings” and that the arresting officer assisted him in attempting to subdue the appellant.
b) The evidence for the defence
[16] The appellant testified and acknowledged that he is a crack cocaine user and that his practice is to smoke crack cocaine with marijuana. He said that on the day of his arrest he had purchased two baggies of marijuana and two baggies of crack cocaine for his personal use, and that he carried the cocaine in his mouth so that he could swallow it if he was stopped.
[17] He said that, as he was walking along the street, the arresting officer got out of his cruiser and began talking to him. When he asked if he was under arrest, the arresting officer replied he was not, said he just wanted to check the appellant out, and asked if the appellant had anything in his pocket.
[18] The appellant testified that he told the arresting officer that he had two grams of marijuana in his pocket plus his cell phone and his money. According to the appellant, he complied with the arresting officer’s request to place those items on the car. The arresting officer told him he would not be arresting him and that he just wanted to search him for weapons and ammunition.
[19] The appellant said he had just placed his hands on the cruiser in order to be searched when an acquaintance, Duane Latour, happened by and spoke to him. He responded to Mr. Latour and then heard the arresting officer say something to Mr. Latour.
[20] According to the appellant, just after the arresting officer handcuffed him in order to proceed with the search, another police officer grabbed him by the throat and told him repeatedly to “spit it out.” During the ensuing struggle the appellant’s throat was squeezed so that he could not breathe or talk and he ultimately passed out. He said that all he had in his mouth was two baggies of cocaine.
[21] Mr. Latour also testified for the defence. He said there was no drug transaction between him and the appellant and that he came upon the appellant while the appellant was being arrested. He testified that the arresting officer told him to be on his way and that it was only after he said that he had witnessed the struggle that he was arrested on an outstanding warrant and on a charge of possession of a controlled substance.
[22] In their evidence at trial, it emerged that both the appellant and Mr. Latour have lengthy criminal records.
ii) The findings of guilt
[23] On May 3, 2004, following a two-day trial, the trial judge found the appellant guilty of all charges. Convictions were entered on all counts, with the exception of the charge for possession of crack cocaine, which was stayed.
iii) The application to re-open the trial
[24] When the matter resumed for sentencing on May 18, 2004, defence counsel at trial (not Mr. Schiffer) requested an adjournment. Defence counsel explained that it had come to her attention that the arresting officer was under investigation for drug-related matters. She said the Barrie Police had issued a press release on May 11, 2004 indicating that the O.P.P. were investigating the arresting officer, that she would be requesting additional disclosure, and that she might be asking the trial judge to either re-open the case or declare a mistrial. Following various discussions, the matter was adjourned to June 21, 2004 “for sentence.”
[25] On June 21, 2004, defence counsel indicated she was asking the trial judge to consider re-opening the case based on the fact that the arresting officer had been suspended and that there were allegations that he had been purchasing illegal drugs while on duty. Following submissions, the trial judge adjourned the matter to August 16, 2004 “for continuing trial.”
[26] On August 16, 2004, the arresting officer appeared in response to a subpoena from defence counsel and was cross-examined. On being asked if he had been involved in the use of drugs, the arresting officer indicated that he wanted an opportunity to speak to his lawyer before giving further evidence because he was under criminal investigation for purchasing drugs on duty.[^6]
[27] Defence counsel had also subpoenaed the arresting officer’s police records from the Barrie Police Service. Following discussion about whether an O’Connor application was required, the trial judge indicated the matter would be adjourned to allow that issue to be argued and he asked the parties to attempt to co-ordinate the date with the arresting officer’s lawyer bearing in mind that the appellant was in custody.
[28] After a recess, duty counsel appeared on behalf of the appellant and advised that unless the other matters could be dealt with within one week or less the appellant wished to proceed with sentencing that day. In the result, the sentencing proceeded on August 16, 2004 and the appellant was sentenced to a total of eighteen and one half months imprisonment.
iv) Post-trial disclosure pending appeal
[29] The appellant filed an inmate notice of appeal on June 9, 2004. A solicitor’s notice of appeal was filed on May 3, 2005.
[30] In April 2005, the respondent advised the appellant’s appellate counsel that the arresting officer had been charged with four Criminal Code offences: theft under $5000, theft over $5000, public mischief and obstruct justice. The informations relating to these offences were sworn on April 19, 2005. One of the informations alleges that, between December 2002 and May 2003, the arresting officer converted a 1998 pick-up truck owned by P.C. Marshall to his own use, that the arresting officer reported the vehicle stolen at a time when it had not been stolen and that he provided false information to officers investigating the theft. The second information alleges that, in January 2002, the arresting officer stole $260 in cash plus six pre-paid $25 telephone cards.
[31] On June 7, 2005, the respondent forwarded to appellant’s counsel an edited and unsigned copy of a Notice of Hearing directed to the arresting officer under the Police Services Act, which sets out the particulars of 71 allegations of discreditable conduct, deceit and neglect of duty. The particulars include the following assertions:
that on December 3, 2002, he borrowed a 1998 pick-up truck from a fellow member of the Barrie Police Service, drove it to the home of an associate who is a known drug dealer, crashed the vehicle, and arranged to have the vehicle removed from the scene and eventually sold. In addition, he informed his fellow officer that the vehicle had been stolen and arranged for that officer to make the stolen vehicle report. As the result of discrepancies in the story concerning the location from which the vehicle was stolen, he and his fellow officer subsequently pled guilty to discreditable conduct under the Police Services Act for falsely reporting the vehicle stolen from a donut shop;
that on January 25, 2002, he stole money and telephone cards from an evidence bag;
that in October 2002 and April 2004, he consumed cocaine while on duty;
that between 2002 and 2003 he left Barrie while on duty in an unmarked police vehicle and attended the home of a person known to be involved in the drug trade;
that on several occasions between 2002 and 2004 he received cocaine from an associate and delivered it to another associate;
that on several occasions between January 2001 and January 2004 he made false, misleading or inaccurate claims for paid duties;
that on several occasions between November 2000 and February 2004 he made unauthorized CPIC checks on himself and others;
that between 2000 and 2004 he associated with several known drug dealers; and
that he failed to take good or sufficient notes dealing with various incidents.
[32] The Provincial Crown confirms that the Police Services Act charges against the arresting officer have been stayed pending disposition of the Criminal Code charges.
v) The inventories prepared by the record holders
[33] In a letter to appellant’s counsel, counsel for the Barrie Police Service notes that the documents contained in their inventory “reflect a portion of the criminal brief prepared by the O.P.P. in the [arresting officer’s] prosecution (volumes 6-8), as well as all of those which are not included in that brief.” The inventory itself is titled “Documents in the Possession of the Barrie Police Service” and is divided into two main sections: i) information contained in the O.P.P. brief; and ii) information not contained in the O.P.P. brief.
[34] Most of the records in the Barrie Police Service inventory that are also contained in the O.P.P. brief (volumes 6-8) consist of notes, will says, or interviews of third party witnesses and P.C. Marshall.
[35] The records in the Barrie Police Service inventory not contained in the O.P.P. brief include the following sections: i) volumes 1, 2 and 7, consisting largely of voice log transcripts, third party interviews and notes prepared by the arresting officer or third party witnesses (most of these documents are dated 2004, some are undated); ii) volume 10 consisting of platoon rosters for 2001-2004 and CPIC audits; iii) volume 11 consisting of surveillance reports regarding the arresting officer carried out in April, May and June 2004, media documents relating to the arresting officer, and police and Crown briefs concerning unrelated matters; iv) volume 13 consisting of a sealed search warrant for a third party address; v) DTE binders 1-5 apparently relating to a driver education initiative; vi) a CPIC binder; vii) a photographs binder consisting of photographs of P.C. Marshall’s vehicle, and viii) a notes binder consisting of various notebook entries by the arresting officer.
[36] The inventory prepared by counsel for the Provincial Crown is arranged under the headings, Crown Brief--Vol. 1-5, 9-11, and binder. Volume 1 consists largely of background documents (e.g. draft charges, the arresting officer’s job application and notice of suspension), synopses and reports. However, it also includes five interviews or statements of the arresting officer and various CPIC searches and “related documents” (including notebook entries by the arresting officer).
[37] Volumes 2, 3, 4, 5 and the binder consist largely of interviews and materials from third parties, several of whom are police officers. Volumes 9 to 11 contain investigatory material relating to the telephones of the arresting officer, P.C. Marshall and third parties. Many of the documents in this inventory have no date reference; the majority of those with date references bear a date in 2004.
[38] Both record holders identified documents in their inventory that they submit are irrelevant. However, as neither record holder is responsible for making disclosure to the appellant, it is unclear how this determination was made, or what threshold was applied.
III. Analysis
i) The relationship between Trotta and O’Connor
[39] In Trotta, this court set out the test for ordering the Crown to provide disclosure on appeal of records in its possession in the specific context of an application to admit fresh evidence. Since the applicants in Trotta limited their request for disclosure to records in relation to which third party privacy interests had been waived, it was not strictly necessary for this court to consider the impact of third party privacy interests on a disclosure application in the appellate context. In my view, however, the Trotta test for disclosure on appeal also reflects the appropriate stage one relevancy threshold for production of records on appeal that are subject to third party privacy interests.
[40] In Trotta, this court explained that the relevancy threshold governing the Crown’s disclosure obligations on appeal is different from the relevancy threshold that applies at trial. In particular, at paras. 20 to 24 of Trotta, Doherty J.A. noted that, in accordance with R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, the Crown’s obligation at trial is “to make timely disclosure to an accused of all relevant information in the Crown’s possession.” In the trial context, “[r]elevant information refers to any information that there is a reasonable possibility may assist the accused in any aspect of the exercise of the right to make full answer and defence.” [Citations omitted.]
[41] Doherty J.A. went on to explain that a different approach is warranted on appeal for at least two reasons. First, a convicted person is no longer presumed innocent. Second, unless he convinces the appellate court to set aside his conviction, the appellant has exhausted his right to make full answer and defence. Doherty J.A. stated that in the appellate context what is necessary is that the Crown’s disclosure obligation “recognize and give full value to an accused’s broad rights of appeal and the rationale underlying those rights.” Accordingly, he concluded that “[t]he Crown’s disclosure obligation on appeal must extend to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his or her appeal.”
[42] In the specific context of a proposed fresh evidence application, Doherty J.A. indicated at para. 25 of Trotta that two conditions must be fulfilled to trigger the Crown’s disclosure obligation. As to the first condition, he said:
To obtain production, the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce. The applicant must show that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence. By assist, I mean yield material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence.
[43] Concerning the second condition, Doherty J.A. continued:
The applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. Unless the appellant can make both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and consequently, no reason for this court to require the Crown to disclose it.
[44] As already noted, in my view, the Trotta test reflects the appropriate stage one relevancy threshold on appeal for production of records that are subject to third party privacy interests. As I will explain, this is because Trotta is the appellate equivalent of the O’Connor stage one relevancy threshold.
[45] The O’Connor stage one relevancy threshold for production at trial of records that are subject to third privacy interests requires that an applicant demonstrate “likely relevance”. In the context of a trial, “likely relevance” refers to a reasonable possibility that the information requested will be logically probative to an issue at trial or the competence of a witness to testify. By way of comparison, in the context of an application to admit fresh evidence on appeal, the Trotta test requires “a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.”
[46] In my view, it is apparent from the comparison of these two tests that the Trotta test is the appellate equivalent of the O’Connor stage one relevancy threshold.
[47] As for stage two of the O’Connor test, in the appellate context it is necessary that the factors be modified so that they reflect the interest of the appellant in “obtaining information that there is a reasonable possibility may assist [him] in the prosecution of his or her appeal.” I would modify the stage two O’Connor factors for application in the appellate context as follows:
- at the second stage, after the records have been produced to the court, the court must weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the appellant to prosecute his or her appeal. In balancing the competing rights, the court should consider the following factors:
i. the extent to which the record is necessary to enable the appellant to prosecute his or her appeal;
ii. the probative value of the record in question;
iii. the nature and extent of the reasonable expectation of privacy in the record in question;
iv. whether production of the record would be based on any discriminatory belief or bias;
v. the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by the production of the record in question.
[48] Because the records are sought to assist in bringing an application to admit fresh evidence on appeal, the Palmer[^7] factors governing the introduction of fresh evidence will inform the assessment of factors i) and ii).
ii) Application of the Trotta test to this case
[49] Although the appellant has not yet filed a fresh evidence application, he states in his motion that he proposes to bring an application to introduce fresh evidence on appeal in relation to two issues: first, the arresting officer’s motive for approaching the appellant and second, the arresting officer’s credibility. He seeks production of specific records in relation to each issue.
a) The arresting officer’s motive for approaching the appellant
[50] The first issue in relation to which the appellant proposes to introduce fresh evidence on appeal is the arresting officer’s motive for approaching him on August 15, 2003. Concerning this issue, the appellant requests production of the records relating to the investigation of the pending charges.
A) Positions of the parties
[51] Because of the presumption of innocence, the fact of the pending charges against the arresting officer, standing alone, would be irrelevant at trial and could not be introduced into evidence.
[52] However, the appellant submits that evidence tending to show that the arresting officer had a cocaine habit around the time of the appellant’s arrest, and that the arresting officer was engaging in criminal (or dishonest) conduct linked to his drug habit (collectively “evidence of the underlying misconduct”), could be admissible at trial to support an inference that the arresting officer approached the appellant on August 15, 2003 for an ulterior purpose.
[53] While the records relating to the investigation of the pending charges may not contain admissible evidence of the underlying misconduct, the appellant submits that there is a reasonable possibility that they contain information that could assist in developing such evidence, that such evidence could have affected the verdict at trial and therefore that such evidence would be admissible as fresh evidence on appeal.
[54] Relying on this court’s decision in R. v. Gassyt[^8], the respondent submits that evidence of the underlying misconduct goes only to the officer’s credibility. Since the arresting officer is contesting the pending charges, he is likely to deny any suggestions of misconduct made in cross-examination. In these circumstances, the collateral evidence rule prohibits the admission at trial of evidence of the underlying misconduct.
[55] Further, the respondent points out that the appellant’s trial testimony contained no suggestion that the arresting officer approached him for an ulterior purpose. In these circumstances, the respondent contends that the theory the appellant now advances is speculative. As there is no reasonable possibility the proposed fresh evidence could have affected the verdict at trial, the respondent submits that there is no reasonable possibility that it will be admissible on appeal and that the appellant has not therefore met the threshold for appellate disclosure.
[56] Counsel for the record holders submits that while some of the records may meet the Trotta test for appellate disclosure, others are clearly irrelevant and all of the records contain information that may need to be redacted because of privilege claims or the privacy interests of other people. Counsel for the Barrie Police Service also asserts a privacy interest in the records in the possession of the police.
[57] Counsel for the arresting officer supports the respondent’s position on relevance and also submits that the appellant cannot meet the due diligence criterion for the introduction of fresh evidence on appeal in relation to the records sought.
B) Discussion
[58] I conclude that records relating to the investigation of three categories of pending charges against the arresting officer meet the Trotta relevancy threshold for production: i) pending charges for drug-related activity; ii) pending charges relating to the theft of P.C. Marshall’s truck; and iii) pending charges relating to the report and investigation of the theft of P.C. Marshall’s truck (I will refer to items ii) and iii) collectively as the “pending charges relating to the theft of P.C. Marshall’s truck”).
[59] I would not order production of any records relating to the investigation of the remaining pending charges at this time. The remaining pending charges involve allegations of theft, making false claims for paid duties, conducting unauthorized CPIC checks and insufficient note-taking (the “remaining pending charges”).
[60] I reach these conclusions for several reasons.
[61] First, I consider that there is a reasonable possibility that evidence of drug-related activity on the part of the arresting officer and of related criminal (or dishonest) conduct could be admissible at trial to support an inference that the arresting officer had an ulterior motive for approaching the appellant.
[62] As indicated above, the respondent’s position that evidence of the underlying misconduct would not be admissible at trial rests on this court’s decision in R. v. Gassyt. In my view, at least in relation to the records relating to the investigation of pending charges for drug-related activity and relating to the theft of P.C. Marshall’s truck, this case is distinguishable from Gassyt.
[63] The appellants in Gassyt were convicted of conspiracy to commit murder based in part on the testimony of an undercover officer who posed as a hit-man. Following the appellants’ convictions the undercover officer was charged with theft, fraud and breach of trust. This court dismissed an application to admit fresh evidence concerning the criminal investigation of the charges, holding that such evidence could only affect the officer’s credibility and that its admission at trial would contravene the collateral evidence rule.
[64] Unlike Gassyt, in my view, this is not a case where it is clear that evidence of the underlying misconduct relates solely to the arresting officer’s credibility. In Gassyt, there was no link between the criminal charges against the undercover officer and the charges against the appellants. In this case, the pending charges against the arresting officer include allegations that he had a cocaine habit and engaged in criminal (or dishonest) conduct directly linked to that habit. Because the charges against the appellant include allegations that the appellant was trafficking in cocaine, in my view, there is a reasonable possibility that evidence of the underlying misconduct would be admissible to support an inference that the arresting officer had an ulterior motive for approaching the appellant.
[65] Further, although the appellant’s trial evidence did not include a suggestion that the arresting officer approached him for an ulterior motive, in my view, it does not preclude that theory. On my reading of the appellant’s evidence, P.C. Marshall arrived just as the appellant was about to be searched. What may have occurred if P.C. Marshall had not arrived is an open question. In the circumstances, I would not exclude the possibility that evidence tending to show that the arresting officer had a cocaine habit and engaged in criminal (or dishonest) conduct directly linked to his cocaine habit could provide a basis for such a theory.
[66] Second, it is important to note that the test at this stage is whether there is a reasonable possibility of admissibility of any proposed fresh evidence on appeal. In my view, when combined with the fact of the pending charges for drug-related activity and related criminal (or dishonest) conduct, the records relating to the investigation of the charges I have identified demonstrate on their face that there is a reasonable possibility that they contain information that could assist in developing evidence of the underlying misconduct.
[67] In this regard, I recognize that the arresting officer has not been charged with any drug-related offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, or the Criminal Code, that the drug-related allegations against him are made under the Police Services Act, and that, by comparison, the Police Services Act may impose a lower threshold for commencing proceedings. In my view however, it would amount to improper speculation if this court were to rely, at this point, on the nature of the charges that were laid as a proper foundation for assessing the extent of any evidence of the underlying misconduct that is available.
[68] No doubt, factors such as the probative value of any evidence that may be developed and the amount of trial time it would likely consume could affect its admissibility as fresh evidence on appeal. However, where there is a reasonable possibility that the records contain information that could assist in developing evidence that bears on a decisive or potentially decisive issue at the trial, in my view, rather than at this stage, issues such as these are properly considered on the fresh evidence application, when the weight of the proposed fresh evidence can be properly assessed.
[69] I reach the same conclusion in relation to the application of the due diligence criterion. Depending on the weight of any proposed fresh evidence, failure to meet the due diligence criterion is not a bar to admissibility: R. v. Smith (2001), 2001 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.). It follows that failure to meet the due diligence criterion should not operate as an automatic bar to a production order. Where there is a reasonable possibility that failure to satisfy the due diligence criterion would not bar the admission of any fresh evidence that is developed, failure to meet the due diligence criterion is an issue that should be considered on the fresh evidence application.
[70] On the facts of this case, given the nature of the evidence the appellant proposes to develop and the issues to which such evidence is relevant, in my view, any failure to meet the due diligence criterion is more properly considered on the fresh evidence application rather than at the disclosure stage.
[71] I therefore conclude that to the extent that the records relating to the investigation of the pending charges contain information about alleged drug-related activity on the part of the arresting officer and of criminal (or dishonest) conduct that may be directly linked to such drug-related activity, there is a reasonable possibility that the records sought could assist in developing admissible fresh evidence.
[72] Third, based on my review of the pending charges, I am satisfied there is a direct link between the pending charges relating to the theft of P.C. Marshall’s truck and allegations of drug-related activity. The link is the allegation that the arresting officer attended at the home of an associate who is a known drug dealer either immediately before or immediately after crashing P.C. Marshall’s vehicle. In my view, it is a reasonable inference that if the arresting officer engaged in the misconduct underlying the pending charges relating to the theft of P.C. Marshall’s truck, such misconduct is directly linked to his visit to the drug dealer.
[73] Fourth, based on the information that is available at this point, I am not satisfied that the records relating to the investigation of the remaining pending charges are sufficiently linked to alleged drug-related activity on the part of the arresting officer to warrant their production.
[74] Unlike the pending charges relating to the theft of P.C. Marshall’s truck, there is no information in the particulars of the Police Services Act charges or in the criminal charges that creates a direct link between the remaining pending charges and the allegations of drug-related activity. If the appellant is not successful in developing admissible fresh evidence about drug-related activity on the part of the arresting officer, in my view, it is likely that evidence of misconduct underlying the other pending charges would be barred by the collateral evidence rule.
[75] Accordingly, I conclude that the following records meet the Trotta relevancy threshold for appellate disclosure: records relating to the investigation of the following charges against the arresting officer where the particular record contains information that may assist in developing evidence of the underlying misconduct:
that on December 3, 2002, he borrowed a 1998 pick-up truck from a fellow member of the Barrie Police Service, drove it to the home of an associate who is a known drug dealer, crashed the vehicle, and arranged to have the vehicle removed from the scene and eventually sold. In addition, he informed his fellow officer that the vehicle had been stolen and arranged for that officer to make the stolen vehicle report. As the result of discrepancies in the story concerning the location from which the vehicle was stolen, he and his fellow officer subsequently pled guilty to discreditable conduct under the Police Services Act for falsely reporting the vehicle stolen from a donut shop;
that between December 2002 and May 2003 he converted a 1998 pick-up truck owned by P.C. Marshall to his own use, that he reported that vehicle stolen at a time when it had not been stolen and that he provided false information to officers investigating the theft;
that in October 2002 and April 2004, he consumed cocaine while on duty;
that between 2002 and 2003 he left Barrie while on duty in an unmarked police vehicle and attended the home of a person known to be involved in the drug trade;
that on several occasions between 2002 and 2004 he received cocaine from an associate and delivered it to another associate.
[76] I emphasize that my conclusion that certain records relating to the investigation of the pending charges meet the Trotta relevancy threshold for appellate disclosure is limited to those portions of the records that contain information that may assist in developing evidence of the underlying misconduct.
[77] Based on my review of the inventories prepared by the record holders, it appears to me that it is likely that certain records contain at least some information that may assist in developing evidence of the underlying misconduct, and that it is possible that other records contain such information. I have listed the records that likely contain such information in Appendix “A” and the records that may contain such information in Appendix “B”.
[78] The records in Appendix “A” are divided into three sections: (i) records in the possession of the Barrie Police Service that are not in the O.P.P. brief (the “B.P.S. Appendix “A” records”); (ii) records in the possession of the Barrie Police Service that are included in the O.P.P. brief (the “B.P.S.-O.P.P. Appendix “A” records”); and (iii) records that are included in the O.P.P. brief only (the “O.P.P. Appendix “A” records”). The B.P.S.-O.P.P. Appendix “A” records and the O.P.P. Appendix “A” records both form part of the Provincial Crown’s brief relating to pending criminal charges against the arresting officer. Therefore, they are in the possession of the Provincial Crown, and will be referred to collectively as the “Provincial Crown Appendix “A” records”. The records in Appendix “B” are divided into two sections: (i) records in the possession of the Barrie Police Service that are included in the O.P.P. brief (the “B.P.S.-O.P.P. Appendix “B” records”); and (ii) records that are included in the O.P.P. brief only (the “O.P.P. Appendix “B” records”). As all of the records in Appendix “B” brief form part of the Crown brief relating to the prosecution of the criminal charges, they are records in the possession or control of the Provincial Crown.
[79] If an O’Connor-type procedure is necessary, I would order production of the records listed in Appendices “A” and “B” to the court. For reasons that I will explain, if an O’Connor-type procedure is not necessary, I would: (i) order that the Provincial Crown Appendix “A” records and the O.P.P. Appendix “B” records be produced to the respondent, the Federal Crown, to assess which portions of specific records may assist the appellant in developing evidence of the underlying misconduct and to produce those portions to the appellant; and (ii) give further directions concerning the remaining records.
b) The arresting officer’s credibility
[80] The second issue in relation to which the appellant proposes to introduce fresh evidence on appeal is the arresting officer’s credibility. In relation to this issue, the appellant requests production of the records of the guilty plea proceedings relating to charges of discreditable conduct under the Police Services Act against the arresting officer and P.C. Marshall.
A) Positions of the parties
[81] The appellant contends that the arresting officer is on record as having lied about the location from which P.C. Marshall’s truck was stolen and as having conspired with P.C. Marshall to make a false report about who was in possession of the vehicle when it was stolen. Unlike the situation with the pending charges, because the arresting officer and P.C. Marshall pleaded guilty to Police Services Act charges, the presumption of innocence is not in play. Accordingly, the appellant contends that the fact of the arresting officer’s guilty plea would be admissible at trial to undermine the arresting officer’s credibility.
[82] No one contested the potential relevance of these records. Rather, the respondent and counsel for the officers submitted that the records should not be produced because the appellant abandoned an application for production of records at trial. In particular, these parties say that since the guilty pleas occurred on March 7, 2003, which was well before the appellant’s trial, the appellant cannot meet the due diligence criterion for the introduction of fresh evidence on appeal.
B) Discussion
[83] For reasons that I have already explained, on the facts of this case, because of the nature of the evidence the appellant proposes to develop and the issues to which the evidence relates, in my view, any issue concerning whether the appellant can satisfy the due diligence criterion should be addressed on the fresh evidence application.
[84] On my review of the inventories prepared by the record holders, I do not see any records that are identified specifically as records of the guilty plea proceedings. If such records are included in the inventories, I conclude that they meet the Trotta relevancy threshold for appellate disclosure. As for records relating to the investigation of the charges that led to the guilty pleas, those records also form part of the records relating to the investigation of the theft of P.C. Marshall’s truck, and are already included in Appendix “A”.
iii) The necessity for an O’Connor-type procedure in this case
[85] Because this motion was framed as an O’Connor application, it appears that all parties either accepted or assumed that the records in issue were properly the subject of an O’Connor-type procedure for ordering disclosure. As already noted, the panel had a concern about whether an O’Connor-type procedure is necessary and I will therefore address this issue.
[86] I will begin with a general discussion of the circumstances in which an O’Connor-type procedure is necessary. I will then consider whether an O’Connor-type procedure is necessary in this case.
a) When an O’Connor-type procedure is necessary
[87] The requirement for an O’Connor-type procedure is premised on a third party having a reasonable expectation of privacy (a “third party privacy interest”) in information contained in the record in issue. That this is so, is made clear by this court’s decision in R. v. Clifford (2002), 2002 14471 (ON CA), 163 C.C.C. (3d) 3.
[88] In Clifford, this court was faced with determining whether joint counselling records of a complainant and an accused are subject to ss. 278.1-278.91 of the Criminal Code (the “s. 278.1 regime”). The s. 278.1 regime sets out the procedure for obtaining production of records subject to a third party privacy interest where the offence involved is of a sexual nature.
[89] The definition of record in s. 278.1 is central to the s. 278.1 regime. Section 278.1 defines “record” as follows:
For the purposes of sections 278.2 to 278.9"record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. [Emphasis added.]
[90] Section 278.2(1) provides that “no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of” offences of a sexual nature, except in accordance with the scheme set out in ss. 278.3 to 278.91. Those sections provide for a two-step disclosure procedure similar to that required on an O’Connor application.
[91] In Clifford, Rosenberg J.A. noted that the majority in Mills[^9] concluded that the constitutionality of the s. 278.1 regime is dependent on there being a reasonable expectation of privacy in the information contained in the record in issue. In that respect, he quoted the following passage from Mills at para. 78:
Therefore, if a record does not contain information regarding which there is a reasonable expectation of privacy, then it is not subject to the impugned provisions governing production.
[92] In my view, the same conclusion must necessarily apply to O’Connor and O’Connor-type applications, because they reflect the common law production procedure that applies to records subject to third party privacy interests not covered by the s. 278.1 regime. Accordingly, I conclude that an O’Connor-type procedure is only necessary where records “contain information regarding which there is a reasonable expectation of privacy”.
[93] What may be less clear is the process for determining whether a third party privacy interest exists where, as here, the records in issue are not covered by the production procedure set out in the s. 278.1 regime. Again, Clifford is helpful in illustrating this point.
[94] In Clifford, Rosenberg J.A. noted that the fact that a record falls within one of the categories specifically enumerated in s. 278.1 does not necessarily mean that the record is subject to a reasonable expectation of privacy. However, he concluded that, absent evidence to the contrary from an accused, “a trial judge is entitled to assume that a reasonable expectation of privacy attaches to any of the records falling within the enumerated categories.” His specific comments in this respect are worth noting (at para. 49):
However, the structure of s. 278.1 cannot be ignored. Parliament could have simply defined "record" for the purpose of the scheme as one in which there is a reasonable expectation of privacy. The fact that Parliament went on to specify certain types of records was, in my view, intended to assist the court in determining the scope of the provisions. It obviously wanted to avoid an ad hoc reappraisal in every case of the need to protect certain important categories of records that could be presumed to have a reasonable expectation of privacy. Thus, absent evidence from the accused to the contrary, a trial judge is entitled to assume that a reasonable expectation of privacy attaches to any of the records falling within the enumerated categories and that, accordingly, the accused must comply with the provisions in order to gain access to the records.
[95] It is apparent therefore that under the s. 278.1 regime, records in the enumerated categories are presumed to be subject to a reasonable expectation of privacy unless evidence to the contrary is led by the accused. Under the common law regime however, it may be an open question whether records falling within a particular category, e.g. employment records, should be presumed to be subject to a reasonable expectation of privacy or whether they must be examined individually to assess whether any such record contains information that is subject to a reasonable expectation of privacy.
b) Whether an O’Connor-type procedure is necessary in this case
[96] Because I have decided that only some of the records that are listed in the inventories prepared by the record holders meet the Trotta relevancy threshold, it is only necessary that I consider whether an O’Connor-type procedure is required in relation to those records. The records that I have decided meet the Trotta relevancy threshold are: i) those portions of the records listed in Appendices “A” and “B” that contain information that there is a reasonable possibility will assist in developing fresh evidence that would be admissible on appeal; and ii) any records of the guilty plea proceedings that may exist.
[97] The arresting officer’s claim that the records in issue should be the subject of an O’Connor-type procedure is based primarily on an assertion that, at their core, the records are employment records that contain information that is highly personal to him. The arresting officer contends that the authorities are clear that police discipline records are subject to a reasonable expectation of privacy, and that an O’Connor-type procedure is therefore necessary to order their disclosure.
[98] In addition, the arresting officer relies on the fact that the appellant is a stranger to the proceedings against him (the arresting officer).
[99] For reasons that I will explain, I conclude that the Provincial Crown Appendix “A” records are not employment records giving rise to any presumptive reasonable expectation of privacy in favour of the arresting officer. Rather, I conclude that they are records that were created in the course of a criminal investigation that resulted in criminal charges being laid against the arresting officer. I also conclude that the fact that the appellant is a stranger to the proceedings to which the Provincial Crown Appendix “A” records relate is not a sufficient basis for requiring an O’Connor-type procedure.
[100] The arresting officer suggested no other basis for a claim of privacy in the Provincial Crown Appendix “A” records other than that they are employment records. Accordingly, I would order that they be disclosed to the respondent, subject to any redactions that are necessary to protect potential third party privacy interests of parties other than the arresting officer and P.C. Marshall, and subject to resolution of any privilege claims.
[101] In addition, I would order that the respondent review the records produced to it and, taking account of these reasons, determine whether there is information in specific records that would assist the appellant in developing evidence of the underlying conduct in relation to the charges identified in para. 75. Finally, I would order that the respondent disclose to the appellant any portions of the records containing such information.
[102] For reasons that I will explain, I would give specific directions concerning both the B.P.S. Appendix “A” records and the Appendix “B” records.
A) The Provincial Crown Appendix “A” records
[103] According to the respondent, the records in issue in this case fall into three broad categories: i) materials developed in the course of a disciplinary investigation that resulted in pleas of guilty by the arresting officer and P.C. Marshall to allegations of misconduct under the Police Services Act on March 7, 2003; ii) materials developed in the course of a subsequent disciplinary investigation that resulted in charges being laid against the arresting officer under the Police Services Act following the appellant’s trial; and iii) materials developed during the course of a criminal investigation that resulted in charges being laid against the arresting officer under the Criminal Code following the appellant’s trial.
[104] The respondent used this analysis as part of its submissions relating to the application of the Trotta test. However, in my view, the distinction between records relating to a police officer’s conduct that are the product of a disciplinary investigation and those that are the product of a criminal investigation that has resulted in criminal charges is also important because of its potential impact on the question of whether an O’Connor-type procedure for disclosure is necessary.
[105] Further, I do not accept entirely the respondent’s conclusions concerning the nature of the records in issue. I note that the inventories do not identify which police force prepared which records under what circumstances or for what purpose(s). However, in my view, the logical inferences to be drawn from the information contained in the pending charges, from the inventories, and from the arresting officer’s testimony on August 16, 2004 that he was subject to a criminal investigation for purchasing drugs while on duty, are the following:
when the Barrie police were investigating the theft of P.C. Marshall’s truck in 2002, they were conducting a criminal investigation. The fact that P.C. Marshall and the arresting officer may have acknowledged making false statements to investigating officers during the course of that investigation, that charges flowed under the Police Services Act as a result, and that the records arising from the investigation may also serve as the basis for a discipline proceeding does not change the character of what was otherwise a criminal investigation, or the fruits of that investigation. Any records of the actual proceedings under the Police Services Act would however, constitute discipline records;
when the O.P.P. or the Barrie police pursued the investigation of the theft of P.C. Marshall’s truck (after the truck was discovered in January 2004), they were conducting a criminal investigation. The fact that the fruits of that investigation may also serve as the basis for discipline proceedings under the Police Services Act does not change their original character; and
when the O.P.P. investigated allegations that the appellant was purchasing drugs while on duty, they were conducting a criminal investigation.
[106] As discussed in para. 78, the records in Appendix “A” are divided into three sections, and two of those sections (the B.P.S.-O.P.P. Appendix “A” records and the O.P.P. Appendix “A” records) are collectively referred to as the Provincial Crown Appendix “A” records.
[107] As already noted, the Provincial Crown Appendix “A” records form part of the Provincial Crown’s brief relating to pending criminal charges against the arresting officer and therefore are in the possession of the Provincial Crown. The inventories indicate these records, in large measure, consist of interviews of third party witnesses (often other police officers), the arresting officer and P.C. Marshall.
[108] Since the B.P.S.-O.P.P. Appendix “A” records are also in the possession of the Barrie Police Service, it is logical to infer that they were created by the Barrie police. On my review of the inventories or synopses of these records, they relate to the pending charges involving the theft of P.C. Marshall’s truck. There are overlapping pending charges under the Police Services Act and under the Criminal Code relating to the theft of P.C. Marshall’s truck. However, based on the inferences I have drawn in para. 105, rather than being records created during the course of a disciplinary investigation, in my view, the B.P.S.-O.P.P. Appendix “A” records are records created during the course of a criminal investigation.
[109] On my review of the inventory information concerning the O.P.P. Appendix “A” records, these records relate to alleged drug-related activity on the part of the arresting officer as well as to the investigation of the pending charges relating to the theft of P.C. Marshall’s truck. Some of the inventory information concerning the O.P.P. Appendix “A” records indicates that some of these records are Barrie Police Service documents (for example, vol. 1 tab 14 “Barrie Police report re counts 3-5”). However, since these records are included in the O.P.P. brief only, unless the inventory information concerning a particular document indicates to the contrary, it is logical to infer that the O.P.P. Appendix “A” records were created by the O.P.P. Based on the inferences I have drawn in para. 105, in my view, the O.P.P. Appendix “A” records are records created during the course of a criminal investigation.
[110] As I have found that all of the Provincial Crown Appendix “A” records are records created during the course of a criminal investigation, I conclude that they are not employment records carrying any form of presumptive reasonable expectation of privacy. In particular, while these records may contain information concerning the arresting officer’s conduct during the course of his employment, in my view, that fact is incidental to the purpose for which the records were created. It does not convert the records of a criminal investigation into employment records.
[111] Further, in my view, the fact that the appellant is a stranger to the criminal proceedings against the arresting officer does not, of itself, require an O’Connor-type procedure.
[112] The Provincial Crown Appendix “A” records are records created during a criminal investigation that are in the hands of the Provincial Crown for the purpose of prosecuting pending criminal charges against the arresting officer. In my view, this conclusion extends to the Provincial Crown Appendix “A” records relating to the investigation of alleged drug-related activity on the part of the arresting officer. Although criminal charges were not laid directly in respect of any such alleged drug-related activity, it is apparent from the fact that such records are included in the Crown brief that they are relevant to the prosecution of the criminal charges.
[113] Apart from claiming that the Provincial Crown Appendix “A” records are employment records, the appellant did not assert any other specific basis for requiring an O’Connor-type procedure in relation to these records. For example, the arresting officer did not say that he had a reasonable expectation of privacy based on the nature of the information contained in a particular record or the manner in which the information was obtained; nor did he assert misconduct on the part of the police in obtaining the information. Accordingly, on the facts of this case, I see no basis for concluding that there is a reasonable expectation of privacy in these records or for holding that an O’Connor-type procedure is necessary solely because the appellant is a stranger to the proceedings against the arresting officer.
[114] I therefore conclude that the Provincial Crown Appendix “A” records that meet the Trotta relevancy threshold are not subject to an O’Connor-type procedure vis-à-vis the arresting officer or P.C. Marshall and should be disclosed to the appellant.
B) The Appendix “B” records
[115] As previously discussed, all of the records included in Appendix “B” form part of the Provincial Crown’s brief relating to the pending criminal charges against the arresting officer and therefore are in the hands of the Provincial Crown. Further, the Appendix “B” records are divided into two sections: the B.P.S.-O.P.P. Appendix “B” records and the O.P.P. Appendix “B” records.
[116] As noted in para. 77, the records in Appendix “B” are records that I have concluded may include information that could assist in developing evidence of the underlying misconduct in relation to the pending charges for drug-related activity and relating to the theft of P.C. Marshall’s truck. However, because of the nature of the information in the inventories about these records, I am unable to determine whether it is likely that they include information that meets the Trotta relevancy threshold.
[117] Concerning the B.P.S.-O.P.P. Appendix “B” records, I have no particulars as to what these records are about and can draw no inferences concerning whether they were created during the course of a police investigation or a disciplinary investigation. I would accordingly direct the record holders to provide that information.
[118] Concerning the O.P.P. Appendix “B” records, it is apparent that they relate to the investigation of the pending charges relating to the theft of P.C. Marshall’s truck. However, the Provincial Crown takes the position they are irrelevant. Based on the conclusions I reached concerning the Provincial Crown Appendix “A” records, I conclude that there is no claimed basis that would make these records subject to a reasonable expectation of privacy vis-à-vis the arresting officer. Accordingly, they should be produced to the respondent, the Federal Crown, as it is the Federal Crown that is responsible, as the prosecutor in this case, for making relevancy determinations in accordance with these reasons.
C) The B.P.S. Appendix “A” records
[119] The nature of any records in the possession of the Barrie Police Service that meet the Trotta relevancy threshold that are not in the O.P.P. brief is less clear. These records include the B.P.S. Appendix “A” records together with any records of the guilty plea proceedings that may exist. The inventories indicate that, aside from media documents relating to the investigation and suspension of the arresting officer and any records of the guilty plea proceedings that may exist, these records consist of interviews with third parties concerning drug-related activity on the part of the arresting officer. While it is apparent that there were disciplinary investigations into at least some of the pending charges against the arresting officer under the Police Services Act[^10], I see no clear indication in the inventories concerning whether there was ever a disciplinary investigation into his alleged drug-related activity. On the other hand, it does not appear that any of the B.P.S. Appendix “A” records resulted in criminal charges.
[120] In the circumstances, I am unable to draw any conclusions concerning whether the B.P.S. Appendix “A” records are records created during the course of a criminal investigation or records created during the course of a disciplinary investigation. Clearly, if any records of the guilty pleas under the Police Services Act exist, they fall into the category of discipline records.
[121] If the B.P.S. Appendix “A” records were created during the course of a discipline investigation there may be privacy issues arising from the fact that they are employment records that are (or may be) governed by various statutory provisions e.g. s. 80 of the Police Services Act; the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31; ss. 8, 14 and 32 of the Municipal Freedom of Information and Protection of Privacy Act.
[122] We did not receive submissions concerning any of these issues from anyone other than the arresting officer. However, contrary to the submissions made by the arresting officer, I do not read the authorities as making it clear that police discipline records are employment records that are subject to a reasonable expectation of privacy. Rather, on my review of the case law, there are conflicting authorities concerning whether an O’Connor application is necessary for the production of police discipline records.
[123] For example, the following cases have held that an O’Connor application is necessary in relation to police discipline records: R. v. Shepherd, [1998] O.J. No. 6427 (Gen. Div.); R. v. Fudge, [1999] O.J. No. 3121 (Gen. Div.). However, the following cases have held that an O’Connor application is not necessary (or may not be necessary depending on the police force that is the record holder): R. v. Scaduto, 1999 14897 (ON SC), [1999] O.J. No. 1906 (S.C.J.), R. v. Thibeault, [1997] B.C.J. No. 3080 (Prov. Ct.). Moreover, much of this case law has focused on whether the records are in the possession and control of the Crown rather than on whether the records are subject to a reasonable expectation of privacy and there are no appellate authorities directly on point.
[124] Accordingly, I conclude that there may be unresolved legal issues about the procedure to be used in determining whether employment records not subject to the s. 278.1 regime are subject to a reasonable expectation of privacy and concerning whether and when a police officer has a reasonable expectation of privacy in employment records. In the result, while I am satisfied that, to the extent that they include information that could assist the appellant in developing evidence of the underlying misconduct, the B.P.S. Appendix “A” records meet the Trotta relevancy threshold, and that any records of the guilty plea proceedings that may exist also meet that threshold. I conclude that the issue of to whom they should be produced should not be resolved without the benefit of further submissions.
IV. Disposition
[125] Based on the foregoing reasons, I would make the following orders:
i. subject to appropriate redactions and resolution of any privilege claims, the Provincial Crown Appendix “A” records and the O.P.P. Appendix “B” records should be produced to the respondent. The respondent should review those records and determine which portions of the records meet the Trotta relevancy threshold in accordance with these reasons. For greater certainty, where a particular record contains information that may assist in developing evidence of relevant underlying misconduct as well as other information (“irrelevant information”), the irrelevant information need not be produced;
ii. the respondent shall complete the assessment referred to in i) and produce the portions of the records that meet the Trotta threshold to the appellant as soon as reasonably possible and, in any event, subject to para. iii) within 21 days from the date of the release of these reasons;
iii. any disputes concerning the records to be produced or arising from redactions or privilege claims may be referred to the panel by appointment to be arranged with the appeal scheduling unit;
iv. the record holders shall provide the panel with further information concerning the B.P.S.-O.P.P. Appendix “B” records within 14 days of the release of these reasons;
v. the appellant may arrange an appointment with the panel through the appeal scheduling unit so that all interested parties may make submissions on the question of to whom the B.P.S. Appendix “A” records should be produced provided that any interested party who attends this appointment shall file a factum not exceeding 10 pages;
vi. counsel for the appellant and the respondent should provide a letter to the president of the panel every 30 days updating the panel on the status of this appeal;
vii. this panel is seized of the fresh evidence motion and the appeal; and
viii. this order is without prejudice to the appellant applying for additional disclosure based on further material.
Released: November 30, 2006 “JS”
“J. Simmons J.A.”
“I agree K. Feldman J.A”
“I agree R.A. Blair J.A.”
APPENDIX A
B.P.S. Appendix “A” Records
V2 T5
V7 T10
V11 T22
V11 T23
Provincial Crown Appendix “A” Records (B.P.S.-O.P.P. Appendix “A” Records)
Vol. 7, T4
Vol. 6, T6
Vol. 6, T7
Vol. 6, T11
Vol. 6, T12
Vol. 6, T13
Vol. 6, T14
Vol. 6, T21
Provincial Crown Appendix “A” Records (O.P.P. Appendix “A” Records)
Vol. 1, Tab 6
Vol. 1, Tab 9
Vol. 1, Tab 12
Vol. 1, Tab 13
Vol. 1, Tab 14
Vol. 1, Tab 15
Vol. 1, Tab 16
Vol. 1, Tab 17
Vol. 1, Tab 19
Vol .2, Tab2
Vol. 2, Tab 8
Vol .2, Tab 9
Vol .3, Tab 2
Vol .3, Tab 3
Vol 3, Tab 5
Vol .3, Tab 6
Vol 3, Tab 7
Vol 4, Tab 4
Vol 4, Tab 6
Vol 4, Tab 7
Vol 5, Tab 1
Vol 5, Tab 2
Vol 5, Tab 3
Vol 5, Tab 4
Vol 5, Tab 5
Vol 5, Tab 9
Vol 5, Tab 11
Vol 5, Tab 13
Vol. 5, Tab 15
Vol 5, Tab 18
Vol 5, Tab 19
Crown Brief Binder, Tab 1
Crown Brief Binder, Tab 7
Crown Brief Binder, Tab 8
Crown Brief Binder, Tab 9
Crown Brief Binder, Tab 10
Crown Brief Binder, Tab 11
Crown Brief Binder, Tab 13
Crown Brief Binder, Tab 29
Crown Brief Binder, Tab 31
Crown Brief Binder, Tab 40
APPENDIX B
B.P.S.-O.P.P. Appendix “B” Records
Vol. 8, OPP Brief (entire volume)
Vol. 7 T1
Vol. 7, T2
Vol. 7, T3
Vol. 7, T10
Vol. 6 T1
O.P.P. Appendix “B” Records
Vol. 2, Tab 3
Vol. 2, Tab5
Vol. 2, Tab 6
Vol. 2, Tab 7
Vol. 2, Tab 10
Vol. 3, Tab 1
Vol.4, Tab 1
Vol. 4, Tab 2
Vol. 4, Tab 3
[^1]: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411.
[^2]: I am using the term “charges” in relation to the discipline proceedings under the Police Services Act as a matter of convenience only.
[^3]: Counsel for the arresting officer also filed a factum.
[^4]: 2004 60014 (ON CA), [2004] O.J. No. 2439 (C.A.), leave to appeal to the Supreme Court of Canada granted [2005] S.C.C.A. No. 287.
[^5]: In using the term “O’Connor-type procedure”, I am referring to a two-step procedure at the appellate level, in which the court makes an initial determination of relevancy before determining whether the records should be produced. If the relevancy threshold is met, in the second step, the records are produced to the court so that the court can balance the third party privacy interests and the interests of the applicant in determining whether to make an order for production to the applicant.
[^6]: After indicating he was under criminal investigation, the arresting officer was asked who was investigating him. He said initially that, as far as he knew, internal affairs at the Barrie Police Service was investigating. On being advised of a newspaper article referring to an O.P.P. investigation, he said he did not know who was investigating, but reiterated his position that he did not wish to answer questions about his involvement with illegal substances because he was under criminal investigation.
[^7]: R. v. Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) establishes the criteria for admitting fresh evidence on appeal at p. 205 as follows: i) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases; ii) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; iii) the evidence must be credible in the sense that it is reasonably capable of belief; and iv) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[^8]: (1998), 1998 5976 (ON CA), 127 C.C.C. (3d) 546.
[^9]: 1999 637 (SCC), [1999] 3 S.C.R. 668.
[^10]: The inventory prepared by the Barrie Police Service includes a reference to two Notices of Investigation that were served on the arresting officer under s. 56(2) of the Police Services Act. One was for “DTE (driver education initiative), the second was for “other misconduct” and was stated to be a duplication of a document in the O.P.P. brief. However, there was no specific reference to such documents in the inventory prepared by the Provincial Crown. Section 56(2) of the Police Services Act is now repealed: S.O. 2002, C. 18, Sched. N, s. 62. It provided: “The Chief of Police may also make a complaint under this Part about the conduct of a police officer.”