Appeal from the Notice of Proposal by the Registrar, Real Estate and Business Brokers Act, 2002, S.O. 2002, c.30, Sched. C to Revoke a Registration
Between:
John J. Jarvis
Appellant
-and-
Registrar, Real Estate and Business Brokers Act, 2002
Respondent/Moving Party
MOTION DECISION AND ORDER
ADJUDICATOR: Laura Hodgson, Member
APPEARANCES:
For the Appellant: Nicole Koteff, Counsel
For the Respondent: Shane Smith, Counsel
For the Non-Party Attorney General of Ontario: Sania Cherian, Counsel Ella Leishman-Cyr, Counsel
Heard by videoconference: January 26, 2023
Introduction
1The Respondent, the Registrar under the Real Estate and Business Brokers Act, 2002 (REBBA), seeks an order for the production of the Crown disclosure brief in respect of an ongoing criminal prosecution against the appellant John Jarvis.
2The non-party Attorney General of Ontario (the Attorney General) opposes production of the complete brief on the basis that it will prejudice the ongoing prosecution. The appellant takes no position on this motion.
3For the reasons set out below the motion is dismissed.
Background
4On February 12, 2022, the Respondent issued a Notice of Proposal (NOP) to Revoke the appellant’s registration as a broker. The NOP sets out the grounds for refusal (i.e., sections 10(1)(a)(i) to (iii) of REBBA). The Registrar alleges that the appellant won’t be financially responsible as he filed for bankruptcy in 2021 and has outstanding debts and judgements. He is also not entitled to registration as he made numerous false statements on his applications for registration renewal. Lastly, the Registrar alleges that the appellant’s past conduct affords reasonable grounds for belief that he will not conduct business in accordance with the law as he has outstanding criminal charges related to the misappropriation of funds.
5One year earlier, on February 20, 2021, the appellant was charged with theft by a person holding power of attorney, contrary to section 331 of the Criminal Code; and theft over $5000, contrary to section 334(a) of the Criminal Code. The charges relate to the appellant’s alleged theft and misappropriation of funds in his role as Power of Attorney for his ill father. The criminal prosecution is ongoing. According to the appellant no trial date has been set as there is outstanding disclosure.
6The appellant has appealed from the NOP to the Licence Appeal Tribunal (LAT). It is the appellant’s position that there is no basis for the revocation of his registration. The hearing was originally scheduled to proceed on November 7, 2022 but has now been adjourned to commence on February 27, 2023.
7On September 27, 2022, weeks before the scheduled hearing of this matter, the Registrar brought a motion seeking production of the Crown Brief relating to the criminal charges against the appellant. The Crown Brief is in the control of the appellant or his criminal counsel.
8Given that this production request involved a Crown Brief, the process set out in D.P. v. Wagg, 2004 CanLII 39048 (ON CA) [Wagg], was followed. As a result, the Notice of Motion was served on the Attorney General.
9In response, the Attorney General agreed to produce a redacted Crown Synopsis but not the full disclosure of the Crown Brief, claiming it would jeopardize the integrity of the ongoing prosecution. In its view, the synopsis is sufficiently detailed and specifies the criminal allegations against the appellant. The Attorney General objects to producing the following categories of documents in the Crown Brief prior to the conclusion of the criminal matter: witness statements, police notes, occurrence reports, bank records, Power of Attorney documents, search warrant, witness lists and medical records.
Analysis
10On this motion for production, I must determine if the Attorney General has established that there is a public interest in the nondisclosure of the full Crown brief that overrides the public interest in full access to relevant information at this LAT hearing.
11Under Rule 9 of the Common Rules of Practice and Procedure the Tribunal may order disclosure of any document or thing that it considers relevant to the issues in dispute. The outstanding criminal charges directly overlap one of the particulars the Registrar relies on to revoke the appellant’s registration. There is little doubt that portions of the Crown Brief are relevant to the LAT proceeding. However, when production relates to a Crown Brief the analysis does not end there.
12In Wagg, the court recognized that production of a Crown Brief engages important social interests and relevance alone is insufficient. In that case, the defendant in the civil action had previously obtained the Crown brief prior to his criminal charges being stayed. The court found that production of the Crown Brief could only occur after a screening process that included notice to or consent of the prosecuting authority or police. The judge hearing a motion for production will consider “whether there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information”. The process set out in Wagg has now been applied in different contexts, including regulatory proceedings (see College of Physicians and Surgeons v. Peel Regional Police, 2009 CanLII 55315 (ON SCDC) [Peel]).
13In the civil litigation context, courts balance the needs of the moving party for access to particular materials against the interest of the public in protecting the material from disclosure (N.G. v. Upper Canada College, 2004 CanLII 60016 at para. 12 (ON CA) [N.G.], Joseph v. Debbs 2022 ONSC 837 at paras. 32-33). This includes assessing factors such as the importance of the documents to the litigation and availability of documents from other sources.
14In the circumstances of this case, I find the Attorney General has established that the public interest in nondisclosure of this Crown Brief while the prosecution is ongoing, overrides the interest in access to all relevant materials for the purpose of the LAT hearing. I agree that disclosure of the Crown Brief at this juncture could compromise the criminal prosecution by the tainting or the appearance of tainting witness evidence and prejudice the proper administration of justice.
15Presumably similar witnesses will be called at the LAT hearing and the criminal trial. Affidavit material provided by the Attorney General explains how the integrity of the witness’s evidence is key to the criminal prosecution. The Attorney General’s affiant states:
In the normal course of a criminal case, a witness would not be exposed to the content of another witness’s anticipated evidence in order to avoid any inadvertent tainting of that witness’s independent recollection. The witnesses are not privy to one another’s statements to police. Should any of the witnesses learn about any evidence, including another witness’s statement, it would expose their evidence to a challenge that it is not in fact the product of the witness’s own independent recollections and knowledge of the events at issue.
16The Attorney General notes the importance of the witness’ evidence in this matter remaining “crisp” and the opportunity for the tailoring of evidence being minimized. The reliability of a witness’ account can be undermined by deliberate collusion and by the influence of hearing or reading other witnesses’ statements. This can include information shared between the alleged events and the trial that can impact the witnesses’ perception (see R. v. F.(J.), 2003 CanLII 52166 (ON CA), at para. 77).
17The Registrar submits that any risk of witness taint is speculative and arises, in any event, as a result of the LAT proceeding - not specifically as a result of disclosure of the Crown Brief. The Registrar points to the case of N.G., where the court noted that the risk of tainting by the disclosure of the plaintiff’s videotaped statement to police was remote – that any risk stemmed from the plaintiff testifying at the civil proceeding. I note that unlike the current matter, N.G. related to a singular video statement by the plaintiff and not the entire Crown Brief relating to numerous potential witnesses.
18The Registrar also relies on the College of Physicians v. Dr Ghassan Al-Naami, 2022 ABQB 438. In that case the Alberta College of Physicians requested production of the Crown Brief with respect to an outstanding prosecution. There, the issue was whether the Brief should be produced for the purpose of the College investigation pursuant to the Alberta Health Professions Act. I also note that, in the circumstances of that case, the Attorney General of Alberta raised no public interest concerns with the release of the Crown Brief. I find this case to be of minimal assistance.
19I agree that the risk of witness taint exists regardless of whether there is full Crown disclosure. It is, however, a question of degree. I see no basis to further increase the risk of exposure and contamination of evidence vital to the criminal prosecution. There are some mechanisms at LAT proceedings for preventing witnesses from hearing another witness’ evidence (i.e., witness exclusion orders). Short of a confidentiality order, however, the materials relied on by the parties will be available to the public, including witnesses, and possibly referenced in the Tribunal decision.
20Courts have recognized that premature disclosure of the Crown brief may jeopardize the integrity of criminal prosecutions and is a serious public interest consideration (see Dixon v Gibbs, 2003 CanLII 1921 (ON SC) at para. 27, O’Leary v. Ragone, 2021 FC 185 [O’Leary] at para. 34). In G.L.K. v. C.L.K., 2021 ONSC 5843 at para. 136 the court observed that while a prosecution is ongoing, prosecution records are wholly excluded from access under privacy legislation so to protect “an array of vital interests” including maintaining the integrity of the criminal justice system and the right to a fair trial.
21The Registrar also submits that the Attorney General’s inappropriate vetting of this specific file negates any objection to the disclosure of this Crown Brief. In the Registrar’s submission, the Attorney General has not conducted the page by page review mandated by Wagg so cannot possibly delineate the risk posed by production of the material.
22The Attorney General, in submissions and affidavit material, indicated that except in rare circumstances (i.e., child protection cases) the Crown will not release the Crown Brief in an ongoing prosecution to preserve the integrity of the proceedings. In the circumstances of this case, the Attorney General’s Wagg counsel contacted the Trial Crown with carriage of this file. It was the Trial Crown who assessed the file and determined that only a redacted synopsis could be disclosed at this time. As noted, the trial date has not been set because the Crown disclosure is not yet complete. According to the Attorney General, with the exception of urgent child protection/safety cases, Crown Briefs are only assessed by specialized Wagg counsel post prosecution. Many times, at that juncture, disclosure issues are resolved on consent.
23The Registrar raises an important and valid point with respect to the review of the materials now at issue. Blanket statements and broad generalities with respect to risk are not sufficient for the Attorney General to override the public interest in access to relevant information for LAT proceedings. In the circumstances, however, I do not find that the absence of a page by page review by specific Wagg counsel nullifies the public interest concerns noted by the Trial Crown with carriage and knowledge of this matter.
24In considering if the risk of jeopardizing the criminal prosecution outweighs the benefit of the Crown Brief to the LAT proceedings, I have also considered other factors relevant to the proceedings. I note that, in the circumstances of this case, the criminal charges are only one aspect of the Registrar’s reasons for revocation of the appellant’s registration. The NOP indicates that the appellant is not financially responsible and was dishonest on various registration applications. Clearly, the outstanding criminal charges are a serious particular, none the less, the Registrar has other significant particulars supporting its position for revocation of the appellant’s registration.
25I note that the Attorney General has disclosed the Crown synopsis which clearly sets out the criminal allegations against the appellant. I also note that some categories of documents in the Crown Brief (e.g., the appellant’s bank documents) are available to the Registrar through other means.
26I recognize that the Registrar has a public interest mandate to ensure regulatory compliance. This, however, differs from the Crown interest in prosecution of the accused and protection of the public from the commission of crimes. In Peel, supra at para. 57, the court noted that the public interest served by a regulatory body is not the same as the public interest protected by the Attorney General. I also note that there are mechanisms available to the Registrar to protect the public interest, from a regulatory perspective, prior to a hearing. This includes a temporary, immediate suspension of the appellant’s registration under section 15 of REBBA.
27There was no suggestion by the Registrar that the appellant is in the advantageous position of using these materials for the LAT hearing. As explained in affidavit material provided by the Attorney General, in exchange for the Crown Brief, the appellant’s criminal lawyer and the accused/appellant undertake to not use or produce the records in any other proceeding (see also O’Leary, supra, at para. 25).
28Lastly, both the Registrar and the Attorney General suggest there is a risk of inconsistent findings if the Crown Brief is not disclosed and if it is disclosed. In the circumstances, I don’t agree that this is an issue that would “bring the administration of justice into disrepute”. The criminal and LAT proceedings involve very different processes, different types of decision makers, different legal tests and in some respects, different factual considerations.
29I have also considered the Registrar’s submission that placing conditions on disclosure of the Crown Brief could mitigate any risk to public interest. The Registrar points to conditions used in N.G., supra, where, as noted only one statement was at issue. Here, there are multiple categories of documents at issue that will potentially become exhibits at the LAT proceeding. The conditions proposed by the Registrar includes broad language such as that copies will not be provided to anyone “other than to the LAT as is necessary in the course of any hearing”. In my view, in the circumstances of this case, conditions cannot mitigate the risk to the integrity of the criminal proceedings at this juncture.
30I conclude that, in all the circumstances, the Attorney General has established a public interest in the nondisclosure of the Crown brief while the prosecution is ongoing. There exists a risk of witness taint and to the fairness of the criminal proceedings that overrides the public interest in access to the Crown Brief for the purpose of this LAT proceeding.
Order
31The motion is dismissed.
LICENCE APPEAL TRIBUNAL
___________________________
Laura Hodgson, Member
Released: February 02, 2023