Warning

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: September 29, 2023 Court File No.: Toronto 4817 998 22 70004414

Between:

HIS MAJESTY THE KING

— AND —

J.R.

Before: Justice David S. Rose

Heard on: September 25, 2023 Reasons for Judgment released on: September 29, 2023

Ruling on Defence Disclosure Motion

Counsel: K. Frew, counsel for the Crown L. Board, D. Brown, counsel for the accused J.R.

Rose J.:

Overview

[1] J.R. is charged with one count of sexual assault against a single complainant on June 8, 2022. On May 1, 2023 the Crown elected to proceed by Indictment, J.R. elected to be tried in the Ontario Court, and entered a plea of not guilty.

The Case

Procedural Steps

[2] This case has had a full menu of pre-trial procedural steps. They form the backdrop which must be reviewed to understand the context of this particular motion.

[3] The Crown initially sought a ruling that the evidence of another person (SFE witness) could be heard at trial. That ruling was sought on the basis that the witness could testify about other discreditable conduct of J.R. On May 11 I found that testimony to be admissible as evidence of similar acts. In that ruling I rejected the defence argument that the doctrine of issue estoppel barred its admissibility. That ruling was rendered moot when the Crown subsequently undertook not to call the SFE witness.

[4] Before the Crown withdrew the SFE witness from its case the defence brought a motion to set aside settlement privilege in a pending or anticipated lawsuit between the SFE witness and J.R. When that motion arrived in Court I told the defence that I would not hear it without hearing from the privilege holder, ie the SFE witness. I am given to understand that counsel for the SFE witness was then provided with that motion to set aside settlement privilege. While that motion was ultimately abandoned upon the Crown’s change of position on the SFE witness the fact that counsel for the SFE witness was contacted about that motion should be no surprise.

[5] The Crown then sought a ruling which permitted the complainant’s text message exchanges with J.R. to be lead at trial. In that ruling I found that the Crown could lead the text messages, subject to various redactions, after applying the principles in R. v. Seaboyer, [1991] 2 S.C.R. 577. In another ruling I found that the complainant could not testify remotely but could testify with use of a screen.

[6] Subsequent to that ruling, on September 8 I revisited the Seaboyer ruling in light of the recently disclosed waiver by the complainant to having her text messages put into evidence. Other motions were brought at the same time involving the admissibility of various other pieces of evidence.

Superior Court Proceedings

[7] Apparently the defence obtained a subpoena to compel Ms. McCallum, who had been prosecuting this case, to testify in support of the defence disclosure motion. I was never provided with a copy of the subpoena. What I was provided was a transcript of proceedings before Schreck J. in the Superior Court from August 29, 2023. After some argument, His Honour granted the Crown motion to quash the subpoena.

[8] In response to comments made by Schreck J. it appears that the Crown has itemized the various emails sought by the defence in this motion and listed the reason why in law the Crown resists disclosure. These are listed at the end of this ruling.

The Disclosure Requests

[9] J.R.’s application record contains some of the disclosure requests which form the basis of this Motion. One is from Ms. Board to Ms. McCallum, dated May 19, 2023 and reads, in part:

We’re requesting disclosure of all communications between the Crown and the complainant, between the Crown and complainant’s counsel, an explanation about how the lawyer was chosen, how the lawyer would be paid, any instructions the Crown gave complainant counsel, and details surrounding the complainant’s waiver or anything else that arose as a result of legal advice given. If any of these communications took place over the phone, we’re looking for disclosure of whether there were witnesses to these conversations (including other Crowns or police) and a will say about what was discussed. We’re looking for disclosure of any invoices complaint counsel provided regarding services rendered, or at least an accounting of time.

[10] On May 31, 2023 Ms. Board again wrote to Ms. McCallum:

Further, can you please provide a response about the VWAP request, below – did the Crown’s office have any communication with VWAP to facilitate obtaining counsel for the complainant? If these communications exist but you’re refusing to disclose them, again please let us know the basis of the refusal.

This Motion

[11] The Defence application seeks disclosure of the following materials:

i. Communications between the Crown and the complainant personally or through counsel; ii. Communications between the Crown and the similar fact witness personally or through counsel; iii. Communications between the Crown and Victim Witness Assistant Program (VWAP) personally or through counsel; iv. Details involving the storage and destruction of J.R.’s consent DNA Sample taken in the case involving the similar fact witness.

[12] In oral submissions Ms. Board abandoned ii). She categorized the 4 categories into two, namely: communication between the Crown and anyone arranging counsel for the complainant in this case; and also communications surrounding the destruction of J.R.’s DNA sample. She argued that the defence does not understand why emails were sent to various parties or their context. She also argued that in this case the Crown was creating a buffer between itself and the complainants which is improper.

[13] The relevance is said to be: 1) information provided by complainant’s counsel is relevant to the admissibility of extrinsic sexual activity; 2) the SF witness’ knowledge of the case involving the complainant; 3) possible improper conduct by the Crown; and 4) further possible misconduct by the Crown regarding the failure to destroy J.R.’s DNA in a timely fashion.

[14] The Crown resists the disclosure motion. In its factum it provided a summary of the emails sought, and the reasons why it resists disclosure. In most cases the reason is that the material is clearly irrelevant. In some cases it asserts a litigation privilege.

The Law – Disclosure

[15] A defendant in a criminal trial is entitled to disclosure. It is a constitutional right which is read into s. 7 of the Charter. That right is not absolute. Rather, in the wake of R. v. Stinchcombe, [1991] 3 S.C.R. 326 the rules have been sufficiently litigated that the law of disclosure is now settled. The Crown has an obligation to disclose all relevant, non-privileged information in its possession or control be it inculpatory or exculpatory, see R. v. Gubbins, 2018 SCC 44 at par. 18, R. v. Chaplin, [1995] 1 S.C.R. 727 at par. 21.

[16] Put another way, the accused has a constitutional right to make full answer and defence. That right is infringed if there is a “reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence” see Gubbins, 2018 SCC 44 at par 18 quoting from R. v. Dixon, [1998] 1 S.C.R. 244. When the defence alleges that the Crown has not made full disclosure, it is the defence that bears a persuasive burden to demonstrate a reasonable possibility that the material could be used in meeting the Crown’s case or advancing a defence or otherwise making a decision that could affect the conduct of the defence”, see R. v. Flis & Grande, 2006 ONSC 32063 at par. 112 – 113.

[17] In the ordinary disclosure process there is no dispute about what must be disclosed. Fruits of the investigation, witness statements, police notebooks and electronic recordings touching the investigation are all routinely disclosed.

[18] In this case there is no complaint about that. Rather, what is sought is emails between officers and the Crown and others beginning some weeks after J.R. was arrested and extending into the period after J.R. had been appearing before me for argument on pre-trial motions. In this case, the claim by the defence is that the email by the complainant’s counsel dated November 14, 2022 was disclosed late. One of the effects of that late disclosure was that the Crown Seaboyer Motion had to be re-argued with the waiver now before the Court. I was provided no reason for the late disclosure.

[19] Not every document generated by the Crown or police during the course of the investigation and prosecution is disclosable. Persons involved in an investigation and prosecution may well have spent working hours on issues touching the administration of the prosecution which is not relevant for disclosure purposes.

[20] What is important for this ruling is that there is no basis for me to conclude that the email communications which arrange meetings, subpoenaing witnesses, update ILA lawyers, or review testimonial aids in any way involved discussions about the evidence. There is no basis to conclude that these emails were investigative in nature. There is no basis to conclude that the complainant – who I am told is the only witness for the Crown – discussed the evidence. That makes them irrelevant for purposes of disclosure, see R. v. Jalili, 2018 ONSC 6408, R. v. Flis (2006), 205 C.C.C.(3d) 384 (Ont. C.A.).

[21] The other reason why the emails are sought, in the submissions of the defence, is to establish Crown misconduct. While many other motions have been brought in the preceding several months, an abuse of process is not one of them. Nor has there been any suggestion by counsel that there is such a motion waiting to be brought. In other words, as this disclosure motion seeks to discover evidence of Crown misconduct it is entirely speculative. It asks that the Crown be required to produce emails into order to prove that it has not engaged in abusive conduct. Effectively this casts the onus on the Crown to demonstrate that it has been Charter compliant in the prosecution. The fact that the November 14, 2022 email from counsel for the complainant was disclosed late in no way rises to the level where I could conclude that there is an abuse of process. Seeking disclosure of a broad range of emails from the Crown in order to explore that possibility is not permissible in law. Rather, it is far fetched, see R. v. Girimonte, 105 O.A.C. 337 (C.A.) at par. 12.

[22] The defence also seeks emails from the Crown regarding the handling and eventual destruction of J.R.’s DNA sample. The motion materials show that J.R. provided a consent DNA sample to the Toronto Police Service (TPS) on May 27, 2022. That would have been several days before the allegations in this case were said to have occurred. Indeed the Consent provided by J.R. specifies a different allegation with a different complainant over two years before this allegation arose.

[23] To be fair to the defence argument, during an earlier exchange in Court when I asked both Crown and Defence what was expected at trial by way of legal issues Ms. McCallum did say that she may want to lead DNA evidence regarding the SFE witness. In a later in Court exchange Ms. McCallum modified that to the possibility that only bodily fluids which were taken from the SFE witness would be lead at trial, and not a forensic match, which I took to mean a forensic match to J.R. Ultimately the Crown has said it will not call the SFE witness at the trial. If there was the possibility that the consent DNA sample might be lead at trial that is no longer the case.

[24] Much argument by the defence was placed on the strict terms of the May 27, 2022 Consent and the fact that the late destruction of the biological material seized in that case was a Charter violation. The argument is that there is a possible Charter violation flowing from any retention by the Center of Forensic Science (CFS) or TPS of any details of the analysis of the sample. I need not decide that. This is a disclosure motion, and the defence seeks emails from the Crown about the discussions between the Crown and the Officer in Charge which lead to the destruction of the sample. Five of the thirteen emails sought have been provided to the defence. Those apparently confirm the destruction of the buccal swab.

[25] It is unclear for this case what the DNA taken by TPS from J.R. has to do with a different complainant, in a case said to have occurred at a different time. The various pre-trial Applications last spring establish that a judicial stay was entered on that case. It is no more. With the Crown’s undertaking not to call the SFE witness at trial it is not a tenuous connection. There is no connection. It is far fetched and has nothing to do with making full answer and defence in this case, see Girimonte, 105 O.A.C. 337 (C.A.) (supra).

[26] I would also add that the Crown’s undertaking not to call the SFE witness limits the scope of inculpatory evidence against J.R. at trial. Why this should generate a Charter violation is unclear, and remains unexplained.

[27] For these reasons the defence disclosure motion has no merit and is dismissed on that basis.

Dated this 29th day of September, 2023

David S. Rose Ontario Court of Justice

Crown Memo: Communications for R. v. J.R.

Communications w/VWAP Complainant

Date	Parties	Topic	Position
July 6, 2022	Rosaline Forbes Toshi Imai	Scheduling Victim meeting	Clearly irrelevant
July 12, 2022	Rosaline Forbes Toshi Imai	Scheduling Victim meeting	Clearly irrelevant
July 13, 2022 [1]	Rosaline Forbes Toshi Imai	Scheduling Victim meeting	Clearly irrelevant
October 28, 2022	Rosaline Forbes Toshi Imai	Scheduling Victim meeting	Clearly irrelevant
October 28, 2022	Rosaline Forbes Toshi Imai	Scheduling Victim meeting	Clearly irrelevant
November 3, 2022	Rosaline Forbes Toshi Imai DC Cordeiro	Scheduling Victim meeting	Clearly irrelevant
November 3, 2022 [2]	Rosaline Forbes Toshi Imai DC Cordeiro	Scheduling Victim meeting	Clearly irrelevant
November 3, 2022	Rosaline Forbes	Update ILA lawyer	Clearly irrelevant
November 4, 2022	Rosaline Forbes	Update ILA lawyer	Clearly irrelevant
April 3, 2023	Rosaline Forbes Toshi Imai Levi Karademir	Testimonial aides	Clearly irrelevant

Communications w/ VWAP SFE witness about complainant matter

Date	Parties	Topic	Position
May 12, 2023	Alyssa Faiola Todd Higo Levi Karademir	Subpoenaing witness	Provided to defence [3]
August 15, 2023	Alyssa Faiola	Update FJ witness	Clearly irrelevant
November 23, 2022	Alyssa Faiola Todd Higo Levi Karademir	Updating FJ witness	Clearly irrelevant

Communication w/ ILA Seaboyer

Date	Parties	Topic	Position
November 7, 2022	Dawne Way	Organizing ILA	Clearly irrelevant
November 9, 2022	Dawne Way	Organizing ILA	Clearly irrelevant
November 10, 2022	Dawne Way	Materials for ILA	Provided to defence [4]
November 14, 2022	Dawne Way	ILA – Crown Seaboyer	Provided to defence [5]
December 12, 2022	Dawne Way	Update Court Order ILA	Clearly irrelevant
January 6, 2023	Dawne Way	Update Court order ILA	Clearly irrelevant
January 19, 2023	Dawne Way	ILA – providing therapist information	Provided to defence [6]
March 7, 2023	Dawne Way; Kelley Bryan	Scheduling	Clearly irrelevant
April 28, 2023	Dawne Way Kelley Bryan	Update Court order ILA	Clearly irrelevant
April 30, 2023	Dawne Way	Update Court order ILA	Clearly irrelevant
May 8, 2023	Dawne Way	Update Court order ILA	Clearly irrelevant

Communications w/ OIC re DNA sample

Date	Parties	Topic	Position
July 7, 2022	Todd Higo	CFS DNA results ready	Clearly irrelevant
July 19, 2022	Todd Higo	CFS DNA results	Results disclosed
May 12, 2023	Todd Higo	Subpoenaing FJ	Clearly irrelevant
May 24, 2023	Todd Higo	DNA consent sample	Litigation Privilege [7]
May 29, 2023	Todd Higo	DNA consent sample	Litigation Privilege
June 7, 2023	Todd Higo	DNA consent sample	Litigation Privilege
June 8, 2023	Todd Higo	Consent sample disposal	Provide to defence [8]
June 12, 2023	Todd Higo	CFS information consent sample disposal	Clearly irrelevant
June 12, 2023	Todd Higo	Request re buccal swab	Clearly irrelevant
June 12, 2023	Todd Higo	Update re buccal swab	Clearly irrelevant
June 15, 2023	Todd Higo	Update re buccal swab	Clearly irrelevant
June 16, 2023	Todd Higo	Confirmation destruction of buccal swab	Provide to defence [9]
June 19, 2023	Todd Higo	Update re extracted DNA	Provided to defence [10]
June 20, 2023	Todd Higo	Confirmation destruction of extracted DNA	Provided to defence [11]

Communication w/ Csl for Similar Fact Witness re: Complainant

Date	Parties	Topic	Position
May 19, 2023	David Butt	Requesting counsel availability on potential s. 276/278	Clearly irrelevant
July 7, 2023	David Butt	Requesting details of settlement privilege (never responded to)	Clearly irrelevant
August 3, 2023	David Butt	Requesting call (never happened)	Clearly irrelevant

Notes

[1] OIC has notes from intro meeting – not disclosed [OIC Notes – July 26 meeting with victim]. There is also a Crown scope note “ Intro meeting w/ complainant complete – role of crown, truth pursuit, trauma informed approached. no discussion of offence. ”

[2] OIC has notes from meeting – not disclosed. [OIC Notes – November 3 meeting with victim]. There is also a Crown scope note “ Meeting SV November 3 – (Officer Cordeiro #11304 , LK, RF present) advise crown will be seeking Seaboyer application, this will likely include all text messages, wants complainant's input after receiving legal advise, VWAP to send list of names. November 7 – Dawne Way retained, will send application to counsel to get victim input w/ ILA. ”

[3] Crown Summary Dismissal Application – June 30, 2023

[4] Crown Summary Dismissal Application – June 30, 2023

[5] Email provided to Daniel Brown and Lindsay Board – May 26, 2023; again provided in Crown Summary Dismissal Application – June 30, 2023

[6] Email provided to Daniel Brown and Lindsay Board – May 26, 2023

[7] I ask OIC to start working on DNA SW to address possible consent sample issues, Crown strategy to address potential issues with consent sample

[8] Email to Daniel Brown and Lindsay Board – June 19, 2023 “I asked on June 7 that the samples be located and destroyed. This was on completed on June 16, 2023.”

[9] Email to Daniel Brown and Lindsay Board – June 16, 2023 property receipts received from Todd Higo on June 16; Email provided to Daniel Brown and Lindsay Board – June 20, 2023 at 9:59 am

[10] Email provided to Daniel Brown and Lindsay Board – June 20

[11] Email provided to Daniel Brown and Lindsay Board – June 20