Court File and Parties

COURT FILE NO.: 18-0552 DATE: 2019 04 18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – RAJA DOSANJH Applicant

COUNSEL: F.M. Kelly, for the Crown J. Greenspan and B.J. Greenshields, for the Applicant

HEARD: April 10, 2019

LEMON J.

Ruling

RULING No. 2 RE: DISCLOSURE No. 1

RESTRICTION ON PUBLICATION A Non-Publication Order is made pursuant to ss. 645(5) and 648(1) of the Criminal Code of Canada that publication of this ruling is prohibited.

The Issue

[1] This ruling should be read in conjunction with my ruling in R. v. Dosanjh, 2019 ONSC 2324.

[2] The defence has brought a pre-trial motion to exclude Crown evidence as a result of breaches of Mr. Dosanjh’s rights pursuant to s. 8 of the Canadian Charter of Rights and Freedoms. In response to part of that application, the Crown has filed an affidavit of the investigating officer, D/Cst Welsh. As a result of that affidavit being filed, the defence seeks an application for:

[D]isclosure of all recorded communications (written or electronic) involving D/Cst. Welsh and the Crown attorney, concerning the infotainment system warrant, from the preliminary hearing up to and including the date the affidavit was filed on March 5, 2019. The request included, but was not limited to, the following information in possession of the Guelph Police Service and/or in the possession of the Crown Attorney: handwritten notes; emails; electronic notes; and all draft versions of the March 5, 2019 affidavit.

[3] Although the defence did not file a formal notice of application, this paragraph, taken from its factum, is agreed to be the request by the defence. This motion was initially brought with very little notice. It was not argued in a manner that followed the usual process. However, there was no argument by either party that, by the time the matter was argued in full, there was any prejudice to the Crown or defence.

Background

[4] Mr. Dosanjh is charged with first degree murder. We are part way through a variety of pre-trial motions brought by both the Crown and the defence. To set the context, I can simplify the current status of the outstanding motions as follows.

[5] Of greatest significance is the defence motion to exclude Crown evidence as a result of breaches of Mr. Dosanjh’s s. 8 rights.

[6] The evidence in dispute is electronic evidence taken from a motor vehicle “Infotainment system.” That is to say, the on board computer within the vehicle’s dashboard.

[7] The Crown submits that this electronic information is powerful evidence to identify Mr. Dosanjh as the killer. The defence seeks to have that evidence excluded pursuant to a number of arguments.

[8] Most importantly, the defence seeks to have me find that the warrant to obtain the evidence in dispute was invalid. That is still to be argued.

[9] One of the arguments as to the invalidity of the warrant is that the Information to Obtain (“ITO”) the warrant was not full, frank and fair.

[10] On the evidence to date, it appears that the police obtained the electronic evidence in issue, advertently or inadvertently, before obtaining the warrant. The defence submits that the details of obtaining that information prior to the warrant are not set out in full, frank and fair detail.

[11] On Thursday, March 7, 2019, the Crown filed an affidavit by the investigating officer in response to the defence factum on that issue. It was to explain further details about the warrant process.

[12] On March 11, 2019, we were to commence argument with respect to further disclosure from the Crown if, as argued by the defence, the Crown had waived privilege with respect to materials filed to that point. If there was such a waiver, there may be further disclosure to be made or ordered. Any cross examination with respect to the ITO could not start until all documentation had been produced.

[13] Before the argument with respect to waiver could proceed, the defence brought this request with respect to the affidavit that was filed on March 7, 2019. The Crown had not been advised of the request, nor had the defence filed any written materials to support the request. The defence went on to submit:

We have serious concerns whether advertently or inadvertently – and I’m not casting anything – I’m just raising this now that we’ve received this affidavit – that the Officer’s purported evidence in this affidavit that we’ve received for the first time has potentially irreparably tainted the process, and that there are now further serious concerns that may cause us to seek that the Crown becomes a witness, a material witness, in this application in this motion before the court. And if it is – becomes, in receipt of this disclosure and receipt of the draft affidavit and in receipt of these materials that we are seeking from the Crown then it will be our position that if it is in particular Ms. Forward, I don’t know, that she cannot proceed with the conducting of this motion before the court. We are going to be asking, as Your Honour knows, for you to making findings of reliability and of credibility of this very witness who has now purportedly filed an 11-page affidavit, and we now need to, as a result of this, fully develop the evidentiary record of this new piece of – of offered evidence by the Crown and by the Police Officer.

[14] After further discussion, it was agreed to put the matter over to allow counsel to properly prepare and respond to the application.

[15] The matter came before me on April 10, 2019. I heard argument over most of a half day.

[16] In brief, the defence submits that they are entitled to all of the requested information without vetting. In the alternative, however, pursuant to R. v. Dixon, [1998] 1 S.C.R. 244 and R. v. Chu, 2016 SKCA 156, the records should be provided to me for my review. In response, the Crown submits that the application, for a variety of reasons, should be dismissed. However, the Crown did not object to providing the material to me for my review.

[17] Following Dixon and Chu, I ordered the Crown to provide the requested information to me for my review (R. v. Dosanjh, 2019 ONSC 2324). I was then able to consider both parties’ submissions on the basis of the materials in issue.

Positions of the Parties

[18] The defence submits that the requested material must be disclosed pursuant to the Crown’s Stinchcombe obligations. The disclosure exists and is relevant to the officer’s evidence on the Charter motion.

[19] Mr. Dosanjh submits that the Welsh affidavit offers a new explanation for how the search of the infotainment system was carried out. This new information was provided for the first time, in polished affidavit form, in the Crown’s materials in response to the defence s. 8 factum. The defence submits that the Crown would have been aware of these issues as a result of the defence’s cross-examination of witnesses at the preliminary enquiry in June of 2018.

[20] The defence points out that the Crown has conceded that D/Cst Welsh’s affidavit is material and has conceded that the defence may cross-examine him in support of its upcoming motion to quash the warrant.

[21] Despite the references to Crown conduct when the matter was first raised, the defence disavows any allegations of Crown misconduct to support the cross-examination. Rather, the defence submits that these documents are relevant to the credibility of the witness. In essence, the defence submits that D/Cst Welsh’s affidavit is a witness statement like any other. Any prior or draft versions of this statement must be disclosed. In that way, the defence would be in a better position to assess the witness’s credibility.

[22] In response, the Crown conceded the relevance of some of the information requested and produced the officer’s notes. However, the Crown submits that the rest of the requested items of information are not “fruits of the investigation”, and are, therefore, not required to be produced.

[23] The Crown submits that the only possible relevance is related to Crown misconduct and that the defence has not provided the necessary “tenable basis” for production of those records.

[24] The Crown concedes that the defence can cross-examine D/Cst Welsh and are free to ask him if he was ever shown any factum on the s. 8 motion. The defence can also ask if anyone pressured him to say something that was not true or if what he swore as true is, in fact, false.

[25] The Crown disputes that there was anything new in the affidavit provided by D/Cst Welsh. The Crown submits that it is “new in form only,” “does not contain much that was not disclosed to the defence before,” and “almost all of its content was contained in their disclosure.”

[26] In the alternative, the Crown submits that the request is overly broad. Given that the affidavit is in issue only as a result of the factum being filed in February 2019, the request back to the time of the preliminary inquiry is too broad.

[27] In short, the Crown submits that the defence request is a “fishing expedition.”

Legal Authorities

[28] In R. v. Dixon, at paras. 20-21, Cory J. said:

20. In R. v. Stinchcombe, it was held that the Crown has an obligation to disclose all relevant material in its possession, so long as the material is not privileged. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown. Relevance was described in R. v. Egger, in this way:

One measure of the relevance of information in the Crown’s hands it its usefulness to the defence: if it is of some use, it is relevant and should be disclosed. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

21. Clearly the threshold requirement for disclosure is set quite low. As a result, a broad range of material, whether exculpatory or inculpatory, is subject to disclosure. In particular, “all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses”. The Crown’s duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence. [Citations omitted.]

[29] In R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 82, 116, and 119-123, Watt J.A. said:

82. The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gathered during the investigation of the offence with which the accused is charged. Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.

83. In first party/ Stinchcombe disclosure, “relevant” is characteristic of the material to be provided to an accused as “fruits of the investigation”. In addition, although it may not fall fairly within the ordinary sweep of “fruits of the investigation”, material that is “obviously relevant” to the defence case may need to be rustled up by the police, provided to the Crown and disclosed to the defence. Like the discipline records in McNeil.

84. The terms “relevant” and “relevance” are old friends of the law of evidence. Familiar faces. Constant companions. We know them well enough to say several things about them without being critical in any way.

85. Relevance is not a legal concept. It is a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence. Some have it. Others lack it.

86. Relevance is relative. It posits a relationship between an item of evidence and the proposition of fact the proponent of the evidence seeks to prove (or disprove) by its introduction. There is no relevance in the air.

87. Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel. Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise.

88. The law of evidence knows no degrees of relevance, despite the frequent appearance of descriptives like “minimally, marginally or doubtfully”, “tangentially” and “highly” that tag along for the ride from time to time. [Citations omitted.]

[30] In R. v. Chu, at paras. 47–48, Jackson J.A. said:

47. Shortly after the Supreme Court of Canada released Stinchcombe, and before Chaplin, this Court established a procedure to review the Crown’s refusal to disclose in Laporte. According to Laporte, the Crown is required to produce “a written, itemized inventory of the information in its possession, identifying those items which it intends to disclose and those which it does not, and containing, in respect of the latter items, a statement in each case of the basis upon which the Crown proposes to withhold disclosure”. The Crown should describe each item “with sufficient detail that counsel will be enabled to make a reasoned decision as to whether to seek disclosure or not”.

48. As Ottenbreit J.A. indicated in Anderson, the courts in Saskatchewan have continued to follow the procedure set out in Laporte. Although it is not mandatory and it is not inconsistent with Chaplin, it is a tool to help determine whether the Crown has met its disclosure obligations. Ottenbreit J.A. confirmed, however, that the Crown “has to justify non-disclosure” in circumstances where the Crown refuses to disclose documents known to exist. [Citations omitted.]

Analysis

[31] When this issue first arose on Monday, March 11, 2019, both counsel were understandably agitated about the issues in play. The defence had limited time to consider their options and the Crown had no notice. The Crown put forward some legal arguments upon which it did not ultimately rely. The defence raised the specter of misconduct, upon which it, too, no longer relies. I have put no weight on any of the submissions made in court that day before both parties had proper time to consider their positions.

[32] In my view, some of the documents requested have obvious relevance with respect to the officer’s credibility. The documents that I order to be produced can reasonably be used by the defence to cross with respect to credibility.

[33] Contrary to the submission of the Crown, the Welsh affidavit has a great deal of new material from the officer attempting to clarify what may be seen as missteps in the past. That will certainly be a topic to be explored and the Crown agrees that the defence may do so. Documentation related to those topics must, therefore, also be relevant.

[34] D/Cst Welsh’s evidence may support or undermine the warrant, which may support or undermine the search and seizure of the infotainment system. As such, this material is obviously relevant to the accused’s case.

[35] I agree with the defence that the affidavit is unlikely to have arrived as a fully completed document without revisions. How those revisions were carried out by the officer, by himself or with others, may be relevant to the credibility of that affidavit and the officer’s evidence.

[36] I have now reviewed the materials provided to me. They are made up of:

1. A bound volume of six tabs containing the emails and messages from the Crown Attorney from June 13, 2018 to March 5, 2019 (Volume 1);
2. A bound volume of the emails and messages from D/Cst Welsh from June 13, 2018 to March 5, 2019 (Volume 2);
3. A bound volume of four tabs between the Crown Attorney and D/Cst Welsh for the period June 7, 2018 to June 12, 2018 (Volume 3); and
4. A fourth volume of two documents (Volume 4).

[37] The vast majority of the material is irrelevant to the issues raised by the defence. However, I am satisfied that the following information should be released as it is relevant to the credibility of D/Cst. Welsh as raised by the defence:

(a) Volume 1, Tab 3: Email from the Crown to D/Cst Welsh dated February 27, 2019, 11:11 a.m. with attachment. (b) Volume 1, Tab 3: Email from the Crown to D/Cst Welsh dated February 26, 2019, 10:41 a.m. (c) Volume 1, Tab 3: Email from the Crown to D/Cst Welsh dated February 25, 2019, 9:27 p.m. (d) Volume 1, Tab 6: Screenshot of text that appears to be dated February 27, 2019, 2:51 p.m. (e) Volume 2, Tab 7: Email from the Crown to D/Cst Welsh dated February 25, 2019, 9:27 p.m. (f) Volume 2, Tab 7: Email from the Crown to D/Cst Welsh dated February 26, 2019, 10:41 a.m. (g) Volume 2, Tab 7: Email from the Crown to D/Cst Welsh dated February 27, 2019, 11:11 a.m. with attachment. (h) Volume 4 in its entirety.

[38] I appreciate that items (a) – (c) and (e) – (g) are the same item but, as they have been duplicated in the materials, they need to be duplicated here. I cannot be clearer in my identification of the documents as a result of the following.

Further Argument

[39] The argument before me on the 10th related only to issues of relevance. At the end of a long day, the Crown requested an indulgence to review the materials with respect to arguments of privilege. I took him to mean that he may not have seen all of the documents to be provided. We left that for another day. Much to my surprise, the materials were provided to me with a covering letter that said, in part:

As explained while we were in session, in the event you determine that some of the enclosed material ought to be disclosed by the Crown to defence, I would ask that the proposed disclosure be sealed and returned to the Guelph Crown’s office care of [a staff person]. That material will then be examined to determine if there are any claims of privilege. That may never arise.

[40] We reconvened on the 15th of April. The defence was provided with a copy of this letter as the Crown had not copied them. The letter was made an exhibit.

[41] I made it clear to the Crown that I could not return the documents to him since they would be part of the court record.

[42] The Crown then clarified that he thought that he could make further argument if he were unsuccessful on the arguments as presented. That came as a surprise to the rest of us. If there are further arguments of any kind to be presented as a result of this ruling, the Crown shall, pursuant to R. v. Chu, serve and file those arguments by April 23, 2019 at 4:30 so that we will have it before we return to court on April 24, 2019 at 10:00 a.m. We will then consider any further steps.

[43] Since the documents may be privileged, I do not wish to identify them more fulsomely in fear of breaching such privilege.

[44] If no further arguments are raised, or allowed to be raised, the Crown shall provide the documents set out above directly to the defence.

“Justice Lemon” Lemon J. Released: April 18, 2019