Court File and Parties

Date: 2012-06-06

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christopher Furlotte

Before: Justice Neil L. Kozloff

Heard: May 23, 2012

Reasons for Judgment released on: June 6, 2012

Counsel:

• E. Behar, for the Crown
• L. Gridin, for the Applicant, Christopher Furlotte

Kozloff, J.:

OVERVIEW

[1] This is an amended application brought by counsel on behalf of the Applicant/accused, Christopher Furlotte, pursuant to section 7 of the Canadian Charter of Rights and Freedoms (the Charter) for an Order requiring the Crown to make further disclosure in the form of occurrence reports (apparently in the possession of the Peel Regional Police and/or Toronto Police Service) relating to police investigations of the complainant, Robert Francis Wilson.

[2] Alternatively, the amended application seeks Order(s) pursuant to section 7 of the Charter requiring the Peel Regional Police and the Toronto Police Service to produce to the court all occurrence reports in their possession in relation to police investigations of the complainant, Robert Francis Wilson, and, an Order that all relevant portions of those records be disclosed to the Applicant in accordance with the procedure set out in R. v. O'Connor (1995), 103 C.C.C (3d) 1 (S.C.C.).

[3] The amended application proceeded before me on May 23, 2012. Mr. Wilson, who had been represented by counsel on the original application date last December, was not represented, although a paralegal from his office was present in the courtroom. I was further advised that counsel for both the Peel Regional Police and the Toronto Police Service were aware of the application and were taking no position.

[4] Following the submissions of counsel, I ruled from the bench that the records being sought fall into the category of first party disclosure, and, made an Order requiring the Crown to (1) examine the contents of the sealed packages provided by the Peel Regional Police and Toronto Police Service on the original application (which sought all criminal investigation records - occurrences reports, synopses, photos, officer notes, witness statements - in their possession in relation to criminal charges against the complainant), (2) review all of the occurrence reports contained therein for the purpose of identifying those containing potentially relevant information relating to the complainant Mr. Wilson, and in particular, relating to past incidents wherein the complainant was intoxicated and/or violent and/or resistant of arrest and/or uncooperative with the police, for the purpose of determining what should be disclosed to the defence.

[5] By letter dated May 28, 2012, Mr. Gridin, on behalf of the Applicant, requested formal written reasons for my decision. These are my reasons.

EVIDENTIARY FOUNDATION

[6] In an Amended Application Record for Disclosure and Production of Third Party Records, counsel for the Applicant provided me with an Amended Notice of Application, the affidavit of Richard Diniz, student-at-law, setting out inter alia the Factual Background, the Defence Theory, and Evidence in Support of the Defence Theory being exhibits sourced from the disclosure already made to the defence by the Crown, including (a) a video of the incident at the Bramalea Bus Terminal taken from Bus 0806, (b) the complainant's medical records, (c) transcripts of the interviews of various witnesses including (Constable Furlotte's partner) Constable Brandon Strain, (d) the complainant's criminal record, and (e) four Peel Regional Police occurrence reports relating to investigations of the complainant including one from 1988, one from 2000, and two from 2001.

[7] The aforementioned exhibits provide an evidentiary basis for the amended application, in that they provide an evidentiary context for the consideration of submissions relating to issues of relevance, including matters "related to the investigation, or which could reasonably impact upon the case against the accused." That evidentiary basis includes the following details:

(a) On August 19, 2010, the Applicant was a Peel Regional Police constable acting in a uniform capacity with his partner Constable Strain. They were on special patrol and driving an unmarked van;

(b) At approximately 6:30 p.m., the officers were patrolling in the vicinity of the Bramalea City Centre when they observed a Brampton Transit security guard speaking to the complainant, Robert Francis Wilson, on the bus platform;

(c) Upon checking with the security guard to ensure that all was in order, he advised the officers that the complainant was intoxicated. The officers commenced an investigation of the complainant;

(d) Strain formed the opinion that the complainant was intoxicated to a degree that he was unable to continue on his journey on public transit, placed him under arrest for being intoxicated in a public place, and handcuffed him to the rear;

(e) Because the van they were operating lacked a cage and was therefore unsuitable for the transportation of prisoners, the officers called for a scout car to attend the scene;

(f) The complainant having refused to identify himself to the officers, the Applicant held the complainant up against the van while Strain began to go through the complainant's bag(s);

(g) The complainant became agitated – hitting himself against the van, verbally abusing the officers, and protesting the search of his belongings – and when the complainant stepped in the direction of Strain, the Applicant attempted to (re)gain physical control of the complainant by pulling him back;

(h) In the result, the complainant fell face first to the ground and suffered significant facial trauma including lacerations, bruising, swelling, and fractures of the nasal bone, the right frontal bone extending into the anterior wall of the frontal sinus, and the anterior cranial fossa floor involving the roof of the left orbit.

[8] Following an investigation by members of the province's Special Investigation Unit (SIU), the applicant was charged with the offence of Assault Causing Bodily Harm. Over the next five months, the Crown made its disclosure to the defence.

[9] By letter dated January 11, 2011, counsel for the Applicant requested further disclosure, including "all occurrence reports for Mr. Wilson related to any incident of violence or dishonesty, whether on CPIC or not and whether or not they resulted in a conviction or disposition".

[10] By letter dated January 17, 2011, counsel for the Respondent replied in relation to the defence request for all occurrence reports, "You are in receipt of all the occurrence reports in the SIU's possession.

POSITION OF THE PARTIES

[11] Counsel for the Applicant argues that the theory of the Crown, as revealed by the charge against the Applicant and the circumstances surrounding the incident, is that the Applicant used force in the course of arresting the complainant and that the force he used was not legally justified.

[12] Counsel for the Applicant advises that the defence will advance the theory that the complainant was resisting arrest and about to assault his partner, or at least that the Applicant believed that the complainant was resisting arrest and about to assault his partner, and that the Applicant was justified in the use of force to maintain or regain control of the complainant.

[13] Accordingly, among the issues to be resolved at trial are (a) whether there was a reasonable basis for the Applicant to believe that the complainant was resisting arrest and about to assault his partner, (b) the degree of force used by the complainant in resisting arrest, (c) how much force was used by the Applicant to maintain control of the complainant, and the degree of force that the Applicant was justified in using to maintain control of the complainant.

[14] Counsel for the Applicant submits that the complainant's extensive criminal record includes a demonstrated propensity for violence. Moreover, the complainant's criminal background reveals inter alia a history of public intoxication as well as for being combative when taken into custody and for resisting arrest. Indeed, one of the four occurrence reports already disclosed to the defence in this case involves an incident in 2001 wherein the complainant:

(a) was found passed out at the side of a road, investigated for public intoxication, and abusive of the police when revived,

(b) refused to identify himself,

(c) was arrested for being intoxicated in a public place, and,

(d) resisted the police when they attempted to search him further at the station during the booking procedure.

[15] Counsel for the Applicant argues that the occurrence reports sought contain evidence of the complainant's bad character and are likely relevant to the complainant's credibility, his propensity for violence (especially in relation to the police), and his (lack of) respect for the administration of justice, and, that evidence of the complainant's bad character meets the very low relevance threshold for disclosure purposes, and, that evidence of the complainant's bad character is also admissible at trial in its own right.

[16] Counsel for the Applicant submits that, pursuant to s. 7 of the Charter, the Applicant has a constitutional right to make full answer and defence, which encompasses his right to disclosure of any relevant, non-privileged information within the possession or control of the Crown, and, that the police occurrence reports being sought are not subject to any privilege.

[17] Counsel for the Applicant submits that the Crown has a legal duty to make reasonable inquiries of the SIU, the Peel Regional Police and the Toronto Police Service to obtain potentially relevant evidence pertaining to the credibility or reliability of the complainant.

[18] Counsel for the Applicant argues that the occurrence reports being sought are within the control of the Crown, in that the investigating agency in the case (the SIU) can readily obtain them (either directly or) upon request from the SIU liaison officers of the Peel Regional Police and Toronto Police Service, and in that the Peel Regional Police and Toronto Police Service have a legal duty to facilitate such a request from the SIU pursuant to section 113(9) of the Police Services Act. The records must therefore be disclosed pursuant to the Crown's first-party disclosure obligations.

[19] Counsel for the Respondent submits that the records being sought are not the fruits of the investigation, that they are not in possession or control of the Crown, that they are third party records, and that therefore the Crown has no obligation – presumptive or otherwise - to disclose them. He distinguishes the occurrence reports previously disclosed to the defence from the occurrence reports being sought on this application response on the sole basis that the former were requested by the SIU investigator from the investigating police force and the latter were not.

[20] Counsel for the Respondent submits that none of the occurrence reports being sought are relevant. He argues that the complainant's alleged propensity to act violently is not relevant to the circumstances of this case because (1) the trier of fact does not need to speculate about the complainant's nature or propensity, and (2) the complainant's credibility is not in issue. (Note: During oral submissions, the Crown advised the court that Mr. Wilson will not be called as a (Crown) witness, or at least that he could not foresee that possibility).

THE LAW

[21] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court outlined the Crown's obligation to disclose all relevant information in its possession to an accused. That first party disclosure obligation extends (only) to material relating to the accused's case in the possession or control of the prosecuting Crown.

[22] The Crown's obligation to disclose to the defence includes all material except that which is beyond its control, clearly irrelevant, or subject to privilege. If the material can be used to meet the case for the Crown, to advance a defence, or in making a decision affecting the conduct of the defence, it must be disclosed: R. v. Chaplin, [1995] 1 S.C.R. 27 at para. 21-22.

[23] Where the existence of certain information has been identified, the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant, or that it is privileged: R. v. Chaplin, (supra) at para 25.

[24] In R. v. McNeil, [2009] 1 S.C.R. No. 3, the Supreme Court of Canada made it clear that while the roles of the Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process, and are obligated to furnish to the Crown all material pertaining to the investigation of the accused as well as information for which there exists a reasonable possibility it may assist the accused to exercise the right to make full answer and defence. For the purpose of fulfilling that corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown.

[25] R. v. McNeil has expanded the scope of the Crown's disclosure obligations and the concomitant production obligations of the police. In an article entitled "Stinchcombe on Steroids: the Surprising Legacy of McNeil", 2009 62 C.R. (6th) 26, Professor (now the Honourable Justice) David Paciocco writes:

Prior to the McNeil litigation there was an unfilled seam between "first party' or Stinchcombe disclosure, and "third party" disclosure under the O'Connor and Mills regimes. Stinchcombe applied solely to the "fruits of the investigation", information within the possession or control of the prosecuting Crown. Meanwhile the O'Connor and Mills regimes balanced relevance against reasonable expectations of privacy. There was therefore an apparent gap for information that was neither the fruits of the investigation, nor subject to reasonable expectations of privacy...

It has long been settled that Stinchcombe, or "first party" disclosure applies to information "in the possession or control of the prosecuting Crown", and not to information in the control of all Crown agents. The police are separate and independent of the prosecuting Crown and are therefore generally regarded as third parties for the purpose of disclosure...

The long-standing exception to this – one that in practical terms occupies far more territory than the rule itself – applies to information gathered during the police investigation of the accused. Since police officers have a legal duty to furnish the prosecuting Crown with the fruits of their investigation, that information is not beyond the control of the Crown. In this indirect way, it falls within Stinchcombe or "first party" disclosure. McNeil takes Stinchcombe disclosure even farther in order to pull the seam between it and third party disclosure closer together. It has achieved this by aggressively interpreting the obligations on both the police and Crown prosecutors...

First, the McNeil court makes it clear that the investigating police force is to hand over more than their investigative file; it is to furnish the Crown with "all material pertaining to the investigation of the accused", including information that may affect the credibility of police witnesses. That duty therefore extends to some internal police or employment records...

As dramatic as this development is, the innovation in McNeil that will have the greatest significance goes far beyond police records. It is the aggressive interpretation given by the Court to the prosecuting Crown's disclosure obligations. According to the decision, the prosecuting Crown is responsible not only to hand over the "fruits of the investigation" and pertinent information furnished to it by the police under the above-described obligation; where the Crown is put on notice of potentially relevant information that could reasonably be considered to be in the possession of other Crown agencies or departments, it has a duty to inquire and to obtain that information if it is reasonably feasible to do so. The clear implication is that relevant information that is obtained after inquiry is to be disclosed to the defence. If the relevant Crown agency or department refuses to co-operate, the Crown is obliged to notify the defence. The supporting theory for what I will call "the duty to inquire and attempt to obtain" is that the Crown and the defence "are not adverse in interest for the purpose of discovering relevant information that may be of benefit to the accused."

...For the first time, the Court has recognized an obligation on the Crown relating to information it does not control. This sits awkwardly with the McNeil Court's affirmation, earlier in the decision, that the Stinchcombe disclosure regime only "extends to material relating to the accused's case in the possession or control of the prosecuting Crown entity. The distinction between the two propositions is slender and appears to amount to this – the Crown is not obliged to hand over Crown information it does not control, but when put on notice it is obliged to try...

In sum, the Stinchcombe obligation is now more muscled than it was prior to the McNeil decision. The police are to furnish the Crown with more than the investigative file; they are now expected, as a matter of course, to include, in the disclosure package, documents arising out of the incident under investigation, even if prepared for internal police purposes. They are also to include documents relating to serious misconduct by officers performing material role in the investigation. Crown Attorneys are going to have to take steps to train investigating police forces to do this, or risk breaching their Stinchcombe obligations. Moreover, when a prosecuting Crown is put on notice – even by the defence – of the reasonable possibility there is relevant information held by other Crown agencies or departments, the prosecuting Crown must inquire and attempt to secure relevant information. If it cannot do so, it must report this to the defence, who can then initiate an O'Connor application.

ANALYSIS

[26] It has already been noted that the Peel Regional Police furnished to the SIU some four occurrence reports relating to criminal investigations of the complainant, which occurrence reports were then turned over to the defence during the disclosure process. The Crown in the course of submissions before me was unable to shed any light on why those (and only those) occurrence reports were disclosed to the defence. The Crown could not distinguish the four occurrence reports already disclosed from the occurrence reports being sought by the defence on this application, save that the latter are not in possession of the Crown. The mere fact that the Crown is in possession of the four occurrence reports and only those – apparently because for whatever reason the SIU investigator chose to request those and only those - does not justify the refusal of the Crown, when put on notice by the defence, to do more than dismiss the request for further disclosure with the response: "You are in receipt of all the occurrence reports in the SIU's possession."

[27] The Crown's submission that the records being sought are not relevant is entirely inconsistent with the disclosure by the Crown of the four Peel Regional Police occurrence reports which disclosure was made in the ordinary course and preceded this application.

[28] Moreover, I find that the records being sought contain information for which there exists a reasonable possibility it may assist the accused to exercise the right to make full answer and defence.

[29] The Respondent has not demonstrated that non-disclosure of the records sought is justified either on the basis that the information sought is beyond its control, or that it is clearly irrelevant, or that it is privileged.

[30] On my reading of s. 113 of the Police Services Act R.S.O. 1990 C P-15 and R. v. McNeil, (supra), there is no reason why the SIU should be treated any differently than an investigating police force in relation to its duty to participate in the disclosure process, and its obligation to furnish to the Crown all material pertaining to the investigation of the accused as well as information for which there exists a reasonable possibility it may assist the accused to exercise the right to make full answer and defence. Therefore, for the purpose of fulfilling that corollary obligation, the SIU, although distinct and independent from the Crown at law, is not a third party; rather, it acts on the same first party footing as the Crown.

[31] Just as an investigating police force is expected to hand over more than its investigative file, and to furnish the Crown with "all material pertaining to the investigation of the accused", including information that may affect the credibility of police witnesses, so the SIU is expected to hand over more than its investigative file, and to furnish the Crown with all material pertaining to the investigation of the accused, including information that may affect the credibility of civilian witnesses.

[32] The Peel Regional Police and Toronto Police Service each has a statutory obligation to cooperate with the SIU and to furnish it with materials in its possession when requested by the SIU to do so.

RULING

[33] The occurrence reports sought by the Applicant are records that fall within the category of first party disclosure, being records which can be used to meet the case for the Crown, to advance a defence, or in making a decision affecting the conduct of the defence.

[34] The Crown is to act as "gatekeeper" in reviewing those records and in determining what should be disclosed to the Applicant. The Crown is to examine the contents of the sealed packages provided by the Peel Regional Police and the Toronto Police Service on the original application, and to review all occurrence reports contained therein for the purpose of identifying those containing potentially relevant information – including but not necessarily restricted to past incidents wherein the complainant was intoxicated and/or violent and/or resistant of arrest and/or uncooperative with the police - relating to the complainant Mr. Wilson.

[35] In the event that the Applicant is not satisfied with the material(s) disclosed by the Crown, counsel may address the matter - or otherwise seek the Orders pursuant to the alternative application for production of third party records - on June 26, 2012, the next date on which the matter is scheduled to proceed.

Date: June 12, 2012

Signed: "Justice Neil L. Kozloff"