Court File and Parties

COURT FILE NO.: 318/1900-AP DATE: 2020 April 20

ONTARIO SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION) (SUMMARY CONVICTION APPEAL)

BETWEEN:

Her Majesty The Queen Appellant – and – Jake Grant Respondent

Counsel: Milan Rupic, for the Appellant Frank Addario and Kate Robertson, for the Respondent

HEARD: March 13, 2020

The Honourable Mr. Justice R. John Harper

The Appeal

[1] This is a Summary Conviction appeal by the Crown from a decision of R.C.B. Watson J. of the Ontario Court of Justice. On June 28, 2019, Watson J. granted an order in favor of the Respondent Jake Grant staying proceedings against him pursuant to s. 24(1) of the Charter of Rights and Freedoms, (“Charter”) on a charge of assault contrary to s. 266 of the Criminal Code of Canada.

[2] The trial judge released his written decision with respect to the stay application on August 2019.

Background

The Alleged Offence

[3] The alleged assault occurred on or about February 15, 2017. The complainant, Bruce Love, entered a Subway restaurant in the City of St. Catharines at approximately 10:30 p.m. He refused to leave the restaurant, when asked to do so. He was stacking chairs in the restaurant and he locked the front door. The staff member, at the restaurant, called the Niagara Regional Police Services (NRPS) and asked for assistance. She then left the premises through the back door. At that point in time, only Mr. Love remained in the Subway premises.

[4] The officers from the NRPS arrived at the restaurant at approximately 10:48 p.m. The officers knocked on the door and told Mr. Love to open it. He could be heard to say multiple times: “you are going to kill me.” He would not open the door. Earlier that same evening, Police Constable (P.C.) Janese and P.C. Milne answered a call to attend a Tim Horton’s restaurant where Mr. Love was present and had refused to leave when asked. When the police arrived and asked him to leave, he did leave with no issues of aggression on his part.

[5] Before the police arrived at the Tim Hortons, they were advised over the police radio from Sgt. Jake Grant that he felt sure that the person in the Tim Hortons was: “the guy from Sally Ann”. They were also told that Mr. Love had a history of mental health issues and violence. They were told to proceed with caution.

[6] When the NRPS arrived at the Subway restaurant there were four (4) police officers who were present, all of whom were situated in the front of the restaurant. Also present was a civilian, Nick Vizza, who works as a dispatcher with the NRPS. He was a “ride along” with one of the police officers. When Mr. Love would not open the front door, the NRPS learned from the staff member of the Subway that the back door was open.

[7] P.C. Trevor Janese and Sergeant Jake Grant entered the Subway through the back entrance. They proceeded through the kitchen into the front of the restaurant where they encountered and took control of Mr. Love. As soon as P.C. Janese and Sgt. Grant entered the front of the restaurant where Mr. Love was located, Mr. Love opened the front door to let the officers who remained outside into the restaurant.

[8] At this point in time, present in the Subway were, Mr. Love, Sergeant Jake Grant, P.C. Trevor Janese, P.C. Matthew Milne and P.C. Kate Livingston. In addition, the civilian Nick Vizza was also present. All of the police cruisers that transported the responding police offers were located in the front of the Subway.

[9] Prior to the arrival of the police, Mr. Love had placed his cell phone on a counter and started to video what was going on. Mr. Love could be heard to say: “this is live on Facebook.”

[10] In addition to audio and video being recorded on Mr. Love’s cell phone, there were surveillance cameras located in both the front of the restaurant and the back of the restaurant where the kitchen was located. All of the material events from the time Mr. Love started his camera were captured on audio and video.

[11] The audio and video were sent to the technical unit of the NRPS and they were synchronized. There was no issue on this appeal that the synchronized audio and video accurately reflected the events shown and heard.

Material Facts Antecedent to Alleged Assault

[12] In order to understand the subsequent analysis, it is important to provide a summary of the material facts leading up to the alleged assault.

[13] Almost immediately after Sergeant Grant and P.C. Janese entered the front of the Subway, the front door was opened, and Sergeant Grant took hold of Mr. Love with the assistance of P.C. Janese. Mr. Love was taken to the back of the restaurant. Once in the back of the restaurant, P.C. Milne followed. He was immediately followed by P.C. Livingston.

[14] At the point in time in which Sergeant Grant and Mr. Love reached the fridge area, Mr. Love was allegedly assaulted by Sergeant Grant. I will expand on this event later in describing the review of the audio and video along with the statements of the police and the complainant.

[15] After the alleged assault, Mr. Love was taken from the back of the restaurant to the front and out the front door to a police cruiser. He was then taken to a hospital for a mental health assessment.

The Investigation

[16] On or about February 17, 2017, Mr. Love attended at the NRPS District 1 Station and spoke with Staff Sergeant Scott Kraushar. Mr. Love played an audio recording on his cell phone that allegedly recorded events at the Subway restaurant of February 15, 2017. During this meeting Mr. Love expressed a desire to file a complaint against Sergeant Grant. The complaints process (OIPRD) was explained to him by Staff Sergeant Kraushar. Shortly after this meeting, Staff Sergeant Kraushar sent a memo of his discussions with Mr. Love to Inspector Cindy White.

[17] On or about February 21, 2017, Mr. Love, once again attended at the NRPS station and spoke to Staff Sergeant Dan Nadeau. Staff Sergeant Nadeau was Sergeant Grant’s supervisor at the time. Mr. Love had not filed a complaint the time of this meeting with Staff Sergeant Nadeau, however he stated that he had filled out the forms. Mr. Love also told Staff Sergeant Nadeau that he would not file a complaint if he was given a sum of money. Staff Sergeant Nadeau told him that he did not have authority to do that and he explained to Mr. Love that he would have to file a civil suit. Staff Sergeant Nadeau told him how to file a civil suit.

[18] On March 13, 2017, one of the investigators assigned to this case, Detective Sgt. Savoie, once again told Mr. Love that this was a criminal investigation and that was separate from a civil matter. He also told him that his civil lawyer would advise him about that. According to Det. Sgt. Savoie, Mr. Love clearly understood that the civil matter was separate from a criminal investigation. During this interview Mr. Love was told that their decision as to whether a criminal charge should be laid would be based on a complete investigation of the matter.

[19] After the February 17 and 21 interviews with Mr. Love, memos of the incident and interview were passed up the chain of command at NRPS to Inspector Woods and the Chief of NRPS. After discussions between the officers in the chain of command and a review of some of the recordings of the events at the Subway restaurant, the Police Standards Unit (PSU) was approved to conduct an investigation pursuant to the Police Services Act. Staff Sergeant Kim McAllister and Detective Sergeant Dan Savoie were assigned to the investigation.

[20] The daily notes of Detective Sergeant Dan Savoie reflect that on or about March 15, 2017, synchronized recordings of all of the videos were made by NRPS. Reviews of the videos were undertaken. After a meeting between Staff Sergeant Kim McAllister, Inspector Prinsen and Inspector Woods, Sergeant Grant was notified that the PSU investigation was now a criminal investigation. The decision was undertaken after a meeting between the investigating officers and Inspector Prinsen, Staff Sergeant McAllister, Sergeant Cliff Priest and Sergeant Pat McGilly and Staff Sergeant Savoie.

Not Referring out the Investigation to Another Police Service

[21] The trial judge found that this investigation should have been referred out to another police force. Watson J. referred to the General Order NRPS 029.11 that was filed as an exhibit at the hearing of the Application. It reads:

In reaching the decision to ask the Chief of Police of another force to investigate a complaint the Chief of Police should consider;

(a) The nature and seriousness of the complaint; (b) The possibility or real or perceived conflict of interest; (c) The reputation of the Police Service; (d) Any other factors that the Chief of Police deems appropriate.

[22] Watson J. found that given the seriousness of the complaint against a NRPS officer, and the credibility and reliability issues of Mr. Love, referring this investigation out was necessary.

[23] The trial judge found that the issue was further complicated by the manner in which Mr. Love was willing to resolve the complaint for money. He found that the NRPS was backed into a corner by Mr. Love’s extortionate conduct and were left in a situation where they had to charge the Applicant despite the inherent dishonesty and lies of Mr. Love.

The Substance of the Criminal Investigation

[24] The lead investigators, Detective Sergeant Savoie and Staff Sergeant McAllister interviewed all of the responding officers, except Sgt. Grant. In addition, the civilian Mr. Vizza and the subway employee was interviewed. Mr. Love was also interviewed, and he provided his cell phone in order to upload his audio and video recording. The police retrieved the Subway surveillance recordings for the relevant time period. The cell phone video and audio from Mr. Love’s phone, the Subway front restaurant surveillance audio/video, and the Subway rear kitchen surveillance audio/video were also synchronized with all cameras and the cell phone recording of Mr. Love.

[25] In addition to the above investigation, the NRPS reviewed the case on two occasions with local crown attorneys. It was also reviewed by a Crown at the Crown Law Office in Toronto.

[26] Sergeant Grant was charged with assault on April 24, 2017.

The Trial Judge’s Ruling

[27] In his written reasons, Watson J. granted the application for a stay based on the following:

a. The complainant pursued criminal proceedings solely for the purpose of extracting financial compensation; b. The prosecutor did disclose to the defence a ruling of Forestell J. in Regina v. Tout et al, (regarding a records application); c. The prosecutor opposed the defence request for disclosure; d. The prosecutor decided not to call the complainant as a witness; and, e. The NRPS investigators misconducted themselves because they were: “not alive to the dangers of being co-opted” by the complainant.

[28] In his reasons for his ruling on the Stay Application, Watson J. stated, commencing at para 51:

[51] I find that given the conduct of Mr. Love, that is that he was exploiting the process for his own financial gain, the conduct of the NRPS in the manner in which they dealt with Mr. Love and the conduct of the Crown with respect to disclosure and the Tout issue that there is prejudice to the Applicant’s right to a fair trial and that the integrity of the justice system “will be manifested, perpetrated or aggravated through the conduct of the trial, of by its outcome.” (Regan, 2002 SCC 12 supra, at paragraph 54)

[52] I further find that there is no alternative remedy capable of redressing the prejudice. Mr. Love cannot be called as a witness in this case by any party. The Court cannot be satisfied that even if the Court called Mr. Love as a witness that his evidence would in any way be deemed to be credible or reliable given how tainted his evidence would be. Simply playing the audio and video created by Mr. Love deprives both sides the opportunity to meaningfully examine or cross examine Mr. Love and more particularly deprives the Applicant of the right to confront his accuser. Given the manner in which this case has played out, Mr. Love has become a toxic witness.

[53] The “main’ and residual” category are both at play in this case. Given that I have found that the “residual” is at play in this case I will embark on a balancing exercise. I find there is no uncertainty over whether a stay is warranted in these proceedings and this it is not strictly speaking necessary to embark upon a balancing exercise; however, I will do so in any event. The conduct of Mr. Love, the NRPS and the Crown in this case must be denounced. The integrity of the justice system in this case is harmed, imperilled and tarnished. An objective member of the public having thoroughly reviewed this proceeding in this Court’s opinion would find that there cannot be a fair trial and a final decision on the merits cannot be arrived at.

[54] The cumulative effects of all the missteps in this case, Mr. Love’s conduct, the NRPS poor investigation, their misinforming Mr. Love as the basic principles and the Crown withholding the Tout decision and proceeding and conducting itself as if the Tout issue never existed cannot be remedied by anything short of a stay of proceedings. The public must understand that trials are not side show carnival attractions with varying rules and responsibilities. The public must understand that trials should operate fairly to all parties, when they do not, the public and the integrity of the system as a whole suffer.

[55] The conduct of the state in this case is serious, this Court must dissociate itself from it. The conduct in this case I find would shock the community’s conscience and would offend its sense of fair play and decency. See Babos, 2014 SCC 16, supra, at paragraphs 43, 44 and 45.

The Standard of Review

[29] Justice Moldaver, in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 48 stated:

[48] The standard for a remedy under s. 24(1) of the Charter is well established. Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice.” (Bellusci, at para.19; Regan, at para. 117; Tobias, at para.87; R. v. Belland, 2009 SCC 38, [2009] 2 S.C.R. 651 at paras. 15 and 51)

[30] For reasons that are set out below, I find that the Applications Judge misdirected himself in law and committed numerous material, reviewable errors of fact. In my view, his decision is clearly wrong and amounts to an injustice.

Stay for Abuse of Process

[31] The Supreme Court, in Babos, reviewed the law relating to applications for a stay of proceedings for an abuse of process.

[32] At para. 30 of Babos, the court made it clear that:

[30] A stay of proceedings is the most drastic remedy a criminal court can order. (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53. It [page 322] permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated, and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

[33] The Supreme Court at para. 31 of Babos, recognized that there are “rare occasions – the clearest of cases” – when a stay of proceedings will be warranted (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68).

[34] The cases fall into two categories:

(A) the “main category” where the state conduct compromises the fairness of an accused’s trial; and (B) the “residual category” where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process.

[35] Under either category the legal test has three requirements:

a. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan at para. 54); b. There must be no alternative remedy capable of redressing the prejudice; and c. Where there is still uncertainty over whether a stay is warranted after steps (a) and (b), the court is required to balance the interest in favour of granting a stay against the interest that society has in a final decision on the merits.

[36] It should be noted that the legal test is the same when applied to both of the “main” and “residual” categories.

[37] At the first stage of the test for the main category, the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will lead to an ongoing unfairness to the accused.

[38] For the residual category, the question is whether the state’s conduct is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: (Babos, at para. 35).

The Issue of Monetary Motivation of the Complainant

[39] In Babos, Moldaver J. cites R. v. Waugh (1985), 68 N.S.R. (2d) 247 (S.C. App. Div.) as an example of a circumstance where the integrity of the justice system is at peril where one uses “the criminal courts to collect a civil debt”.

[40] Although Justice Moldaver cited Waugh as an example of a circumstance where the integrity of the justice system where one uses the criminal courts to collect a civil debt, Justice Moldaver does not state that the Nova Scotia Appeal Court made such a finding.

[41] In Waugh, the accused was charged with fraud and false pretenses arising out of a failure to pay for goods ordered. The accused pleaded not guilty and applied for a stay of proceedings on the grounds of an abuse of process, submitting that the charges were laid only to facilitate collection of a civil debt. While the trial judge granted the stay, the Appeal Division of the Nova Scotia Supreme Court reversed the stay, finding at para. 43:

On all the circumstances of this matter and particularly the involvement of Deputy Chief Seamone, I am far from satisfied that it can be said that the machinery of the criminal process was called in aid solely to the effect collection of moneys allegedly due Mr. Lord by Mr. Waugh.

[42] The Appeal Court, in Waugh, disagreed with the trial judge’s conclusion that “the prime purpose of laying those charges was the collection of this civil debt”.

[43] In R. v. Finn, [1996] N.J. No. 71, 106 CCC (3d) 43 (NL CA), the accused was charged with committing theft and fraud against her former employer. The employer threatened criminal proceedings would follow if the accused did not make satisfactory payment arrangements. The Appeal Division of the Newfoundland Supreme Court reversed the trial court’s decision to stay the proceeding.

[44] The Court in Finn articulated the two lines of thinking related to the necessity of proof or involvement or acquiescence on the part of officers of the state in the improper threats of criminal action by victim-complainants. The first absolute view is that threats so affect the process that a stay may be entered irrespective of whether the police or prosecutors engaged in impeachable conduct. The second distinguishes between the Crown’s officers and victim-complainant in public prosecution and requires impeachable conduct by officers of the state. Without it, no abuse of process is sufficient to ground a stay of public prosecution. Under the second line, there must be evidence of state involvement that acquiesces to the complainant’s conduct. Unfortunately, it is not clear even from the Court’s description of what this “acquiescence” would look like. (my emphasis is added).

[45] The Court in Finn rejected the absolute view because of the Crown’s “independent decision to prosecute in normal course as a matter of public policy, and not for the purpose of implementing any alleged threat by the complainants to invoke the process to enforce recovery of debts”: (Finn, at para. 37).

[46] In the Supreme Court’s decision on Finn, [1997] 1 S.C.R. 10, Justice Sopinka upheld the Appeal Division, finding at para. 1:

The charges were laid after an independent investigation and decision by the authorities. It cannot therefore be said that the purpose of the prosecution was to advance the civil interest of the complainant to recover a debt.

[47] In R v. O’Connor, the Supreme Court did not grant a stay even where the Crown’s conduct was “shoddy and inappropriate”. It is difficult to see that the Crown’s power to prosecute would be held to be affected by acts of the complainant, where nothing improper can be attributed to any representative of the state.

Application of Legal Principles to this Case

[48] I find that the trial judge committed a manifest and palpable error with respect to these findings. His findings, in this regard do not take into consideration material evidence with respect to the nature of the NRPS investigative process and the core evidence that would require a charge to be laid.

[49] The core evidence in this case is the multiple Subway surveillance audio and videos of the events. The investigators during the process of conducting an investigation within the PSU unit, reviewed the evidence that had been gathered to date with a number of superior officers in the chain of command of the NRPS, including the Chief of Police. It was only after such a review, that a criminal investigation was approved. The Applications judge erred in finding that the NRPS was “backed into a corner by the extortionist conduct and inherent dishonesty of Mr. Love requiring them to lay a charge”.

[50] The factors set out in NRPS General Order 029.11 are not mandatory. There was no evidence before the judge that the Chief of Police did not consider those factors. I agree with the Crown’s submissions that this finding of the trial judge amounts to speculation that is not supported in the evidence.

[51] In this case, the Applications judge found that the financial motivation of the complainant should have caused the NRPS to conduct their investigation with a greater vigilance toward this issue. He also found that the financial motivation in itself was a ground for a stay. In making these findings, the trial judge erred both in law and in fact. There was no evidence that the NRPS involved themselves or acquiesced in the threats made by Mr. Love that he would not make a complaint if paid a sum of money.

[52] The evidence is to the contrary. Staff Sergeant Nadeau made it clear to Mr. Love that he had no authority to give him any money. He also told Mr. Love that if he wanted money, he would have to hire a lawyer and bring a civil suit.

[53] The evidence disclosed that Staff Sergeant Nadeau went further and told him that the police were there to conduct an investigation to determine if there was sufficient evidence to lay a criminal charge. The mistake that was made by Staff Sgt. Nadeau was in stating that in the criminal proceedings he would be represented by the Crown. That mistake cannot be translated, in any way to assigning conduct to the police that they involved themselves or acquiesced in the inappropriate conduct of Mr. Love.

Independent Investigation

[54] Furthermore, the NRPS conducted a comprehensive investigation. It started out as an investigation by the Professional Services Unit (PSU) and once certain evidence was reviewed by a number of police officers within the chain of command, a criminal investigation was approved. There is no requirement for the NRPS to bring in an outside Police Service to conduct a criminal investigation of one of their own. That in itself does not demonstrate a bias. A review of the details of the investigation that was conducted is the most important consideration as to whether the NRPS conducted themselves in a manner that a reasonable person could conclude that their investigation was appropriate.

[55] The finding by the trial judge that the NRPS conducted a “poor investigation” is not supported in the evidence. There may be certain parts of the investigation that could and should be the proper subject matter of cross examination at a trial, however, an overall characterization of the investigation as “poor” is not supported in the evidence. Nor does it allow for the inference that state conduct was reprehensible deserving of the last resort remedy of granting a stay.

[56] The NRPS investigators interviewed all the relevant police officers who attended at the events at the Subway, except for Sgt. Grant. They interviewed the civilian in attendance that night and the Subway staff member who initially called the police. They reviewed the notes and statements of the relevant police officers. They reviewed all their notes and reports for the relevant time periods.

[57] Most importantly, they reviewed all the audio and video recordings taken at the Subway restaurant on February 15, 2017. These recordings became the core of the case for the investigators and the Crown. The recordings were also reviewed by numerous police officers up the chain of command including supervisors and Inspectors.

[58] A thorough review and analysis of all of the audio and video surveillance was not undertaken by the trial judge. It is significant that the trial judge only referred to his review of a recording made by Mr. Love from his cell phone. He made no reference in his decision to the two other recordings captured by the Subway surveillance cameras. He stated in his ruling at para. 52:

[52]…Simply playing the audio and video created by Mr. Love deprives both sides the opportunity to meaningfully examine Mr. Love and particularly deprives the Applicant of the right to confront his accuser.

[59] I will comment on the trial judge’s reference to the “right to confront his accuser” later. The above reference to the audio and video recordings is to illustrate, at this point, the misdirection of the trial judge to only a recording made by Mr. Love.

[60] The audio and video recordings captured on Mr. Love’s cell phone only demonstrates the following:

a. Mr. Love was not aggressive at the Subway restaurant at any time prior to being taken to the back kitchen by police. b. Mr. Love was clearly demonstrating mental health issues and on multiple occasions he was pacing back and forth and could be heard to say to the police that they were going to kill him that night. c. When the police arrived, Mr. Love was in the front of the Subway alone pacing back and forth and he told the police that he was recording all of this on Facebook. d. When the police arrived, they were all at the front of the Subway.

[61] The trial judge did not consider any of the above noted evidence.

[62] The crucial events in that Subway on the evening of February 15, 2017 were all captured on the Subway cameras not on the video taken on Mr. Love’s cell phone. The Subway video and audio record a front view and a rear view of the kitchen area of the restaurant.

[63] When Sgt. Grant and P.C. Janese came in through the back door of the Subway they proceeded through the kitchen area to the front of the restaurant. The officers who remained outside at the front of the restaurant were let into the front of the Subway. At the same time as they entered the front of the Subway, Mr. Love was physically secured by Sgt. Grant.

[64] The kitchen area camera at the back of the restaurant then captures Sgt. Grant escorting Mr. Love into the kitchen at the back of the restaurant. He is holding Mr. Love’s arms behind his back as he led him into the kitchen.

[65] It is most important to note that there was no evidence to explain why it was necessary to take Mr. Love into the back of the Subway when he had been secured in the front, and all of the officers, at the time of his apprehension were in the front. In addition, all of the police cruisers were located at the front of this Subway.

[66] Nevertheless, the Subway camera captures the image of P.C. Janese immediately following Sgt. Grant and Mr. Love. He was followed by P.C. Milne and shortly after, P.C. Livingston.

[67] Inexplicably, Sgt. Grant stops Mr. Love and turns Mr. Love in a manner that allowed for Sgt. Grant to be facing Mr. Love. Mr. Love is sideways to a fridge and Sgt. Grant. At this point in time, Sgt. Grant strikes Mr. Love with an apparent punch. That punch can be seen and heard on the video and audio. The respondent submitted that the sound heard was of a swinging door at the front of the Subway. I disagree with that contention. The sound is heard at the very same time the video shows Sgt. Grant connecting a punch to Mr. Love’s body.

[68] A closer look at the synchronized video shows that the swinging door at the front was the swinging noise when the punch connected. At other times during the assaultive behavior, the door at the front did make a noise when swinging, however, numerous strikes from Sgt. Janese connected and made a sound at a time when the door was not making a swinging noise.

[69] When the first punch hit Mr. Love, he reacts by putting his hands up in what appeared to be a defensive position around his face as he slumps down. At this point P.C. Janese is holding the back of Mr. Love’s arms as Sgt. Grant is shouting at Mr. Love to put his hands down. Sgt. Grant then alternates between slapping and punching at Mr. Love. Some of the strikes by Sgt. Grant connecting to the body of Mr. Love appear to be slaps and some appear to be a punching movement.

[70] After a short period of time Mr. Love was stood up by being lifted by P.C. Janese, Sgt. Grant and P.C. Milne. After he was standing and leaning against the fridge, Sgt. Grant is shown on the surveillance video to be threatening Mr. Love with a closed fist while shouting profanities and other derogatory remarks at Mr. Love.

[71] The trial judge only made reference to the profanities coming from Sgt. Grant in his ruling. He stated at para. 12 of his ruling:

[12] The Applicant’s (Grant’s) notes do not accurately reflect the conversation he had with Mr. Love in the Subway. It is not disputed in this application that the Applicant made a number of derogatory, unprofessional and demeaning comments towards Mr. Love. They include the following which were captured on the audio.

“What the fuck is your fucking problem”; “You fucking look at me when I’m talking to you[,] you walking piece of shit”; “Hey[,] look at me, you fuck”; “I said until you look at me this isn’t going to stop”. “Moron”. “Are you fucking retarded”, “Start fucking talking [,] goof”; “I swear to fucking God [,] Bruce[,] if I deal with you one more time in the rest of my fucking existence here [,] I swear to God I’m gonna dump you in the river”; “I’ve had enough of your shit,” “Stop wasting our fucking time”; and “Tell the voices to shut up and get a grip on yourself”.

[72] The trial Judge only made reference to the audio and not the surveillance video. It is a misapprehension of evidence and reversable error to ignore such an important piece of evidence that materially changes the events that occurred. When all of the audio, and multiple videos are taken together, the actions of Sgt. Grant are far worse than they are found by Watson J.. Counsel for the Respondent submitted that Sgt. Grant was only being prosecuted for his bad language. That is not what the totality of the evidence reveals.

[73] Sgt. Grant’s actions show a frightening disregard for a vulnerable prisoner. From his initial punch to Mr. Love through to his direction to P.C. Janese to take Mr. Love out through the front, Sgt. Grant showed a complete disregard for a person in a mental health crisis.

[74] A complete review of all of the surveillance allows for a reasonable person to draw the inference that Sgt. Grant’s deplorable conduct showed an animus toward Mr. Love. There was no evidence that Sgt. Grant was using reasonable force in order to effect an arrest. At the time of the alleged assault, Mr. Love was secure. Mr. Love was reacting defensively after being punched and was trying to protect himself from continued strikes perpetrated by Sgt. Grant.

[75] After the incident in the Subway, P.C. Katherine Livingstone told police investigators that following the events in the restaurant, the officers at the scene wrote their “duty book notes” while sitting in their patrol cars. P.C. Livingston stated that Sgt. Grant said to them:

Be honest in your notes like I hit his hands and I swore at him that’s fine.

[76] Following the events at the Subway, the Respondent spoke with his direct supervisor, Staff Sgt. Nadeau. In a written statement, Nadeau recounted his conversation with the Respondent:

[The Respondent] discussed with me the arrest of Bruce Love [the complainant] on the night shift of February 15th, 2017. . . I recall that he said that Bruce was suffering from a mental break down... Bruce had barricaded himself in the store and once they gained entry, Bruce Love had been arrested under the Mental Health Act. Specifically, Jake [the Respondent] re-enacted the episode. He stated Bruce was on the ground with his arms out and acting erratically, flailing his arms and body and not making sense. Jake advised him to calm down repeatedly, however Bruce was not listening. Jake demonstrated how he knocked his arms down in order to get control of Bruce and get him handcuffed.

[77] In my view, these statements attributed to Sgt. Grant in the evidence before Watson J. amounted to evidence of consciousness of guilt on the part of Sgt. Grant. When taken together with all of the surveillance videos, this is a glaring omission by the trial judge. He did no analysis of this evidence when considering the balancing of the prejudice to the accused with the prejudice to the public in not having a police officer prosecuted for such egregious conduct.

Crown’s Decision Not to Call Complainant

[78] The surveillance videos were central to the Crown’s case. The Crown admitted that Mr. Love was not a credible witness. His recorded interview with the police was filled with inconsistencies when compared with all of the Subway surveillance recordings. For that matter, there were multiple inconsistencies in the interviews and notes of all of the police officers in attendances on February 15, 2017. All of the interviews and notes of all relevant witnesses were disclosed to the defence.

[79] However, the trial judge was critical of the Crown for deciding not to call Mr. Love as a witness. He found that by not calling Mr. Love as a witness, Sgt. Grant was deprived of his: “right to confront your accuser”. This is a reversable error in law.

[80] There is no duty on the Crown to call all relevant witnesses. In the case of R. v. Cook, [1997] 1 S.C.R. 113 the Supreme Court was dealing with this exact situation. The Crown did not call the victim of the crime. On appeal, the Respondent alleged that the Crown’s failure to call this witness prejudiced him and led to an unfair trial.

[81] At paragraph 19 the court stated:

[19] At the outset of the analysis, I believe it is helpful to place the issue in its proper context. In essence, the rule suggested by the respondent would force the Crown to call certain witnesses (assuming they were available and competent), regardless of their truthfulness, desire to testify, or of their ultimate effect on the trial. It is immediately apparent that such a duty, if it were to be established, would have a major impact upon the Crown’s ability to conduct it own case. It would be a clear interference with the broad discretionary powers which are said to be within the purview of the Crown attorney, and which are at the very heart of the adversary process. As a general principle, we have recognized that for our system of criminal justice to function well, the Crown must possess a fair deal of discretion. Moreover, this discretion extends to all of the criminal justice system. As I stated for a unanimous court in R. v T. (V.), [1992] 1 S.C.R. 749, at pp. 758-62:

There is no doubt that the Crown acting through the Attorney General, and in turn through his or her prosecutors, has a wide amount of discretion in the carriage of criminal cases.

…in the context of the Canadian Charter of Rights and Freedoms, this court had occasion to consider whether such discretion constituted an affront to the principles of fundamental justice. In R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, La Forest J. speaking for the Court, states:

The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal system. A system that attempted to eliminate discretion would be unworkable complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, procured by way of indictment or summary conviction, launch an appeal and so on.

[82] It is also recognized that prosecutorial discretion is not absolute. A stay of proceedings is available in order to prevent violations of fundamental justice and abuse of the courts process.

[83] At para. 21, the Supreme Court in Cook stated:

Nevertheless, while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence (Boucher v. The Queen, [1955] S.C.R. 16; Power, [1994] 1 S.C.R. 601 supra at p. 616.) it is will recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth: see, for example, R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 295, per L’Heureux Dube J. Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best if its ability. Indeed, this is a critical element of this country’s criminal law mechanism: R. v Bain, [1992] 1 S.C.R. 91; R. v. Jones, [1994] 2 S.C.R. 229; Boucher, supra. In this sense, within the boundaries outlined above, the Crown must be allowed to perform the function with which it has been entrusted; discretion in pursuing justice remains an important part of that function.

[84] In Cook, the Supreme Court made it clear that the Crown’s duty is to call witnesses that allows them to prove the essential elements of the offence. If the Crown does not call a witness necessary or essential to this task, it runs the risk of not meeting its onus. It goes without saying that the Crown cannot suppress exculpatory evidence. However, that is an issue for disclosure obligations and will be dealt with later in these reasons.

[85] Indeed, in Cook, at para 36, the Supreme Court stated:

I agree with this analysis. In my view, any rationale compelling the Crown to call witnesses based on the need to bring all material facts forward was extinguished by developments in the law of disclosure. It is simply no longer correct to suggest that the defence will ever be “ambushed” by the Crown’s failure to call a material witness. If. For example, the Crown becomes aware that a given witness has made a statement inconsistent with his original one, it is perfectly proper not to call the witness to testify, especially where the Crown feels that the witness is likely to mislead the Court: R. v. Gallagher (D.N.) (1994), 48 B.C.A.C. 139; People v. Andre W., 404 N.Y.S. 2d 578 (C.A. 1997). The defence will not be prejudiced by this decision, as the Crown will still have to turn over the statement to the defence, and the defence will have the option to call the witness.

[86] In this case, the respondent submitted that by choosing not to call the complainant, the Crown had deprived the respondent to his right to cross examine and be able to “face his accuser”. This submission was adopted by the trial judge. This is an error in law.

[87] The Supreme Court stated in Cook, commencing at para. 40:

[40] The respondent also attempts to buttress his submission by claiming that there exists in Canada a “right to face one’s accuser”, and that denying an opportunity to cross-examine the victim of the crime deprives the accused of that right and makes a fair trial impossible.

[41] On more than one occasion, this Court has clearly stated that the contemporaneous cross-examination of a witness is not necessary to guarantee a fair trial: R. v. (K.G.), [1993] 1 S.C.R. 740; Levogiannis, [1993] 4 S.C.R. 475 supra. Moreover, I cannot see how this right, even if it did exist, would be engaged I these circumstances. A witness who is not called at trial does not offer any evidence against an accused. In that sense, the witness is not actually an “accuser” at all, and the accused’s actual ability to cross-examine has not been impeded in any way whatsoever. In this case, for example, the main witness was the complainant, Rebane. The respondent had an adequate opportunity to cross-examine her and the other Crown witnesses. In my view, there is no prejudice in the simple fact that the respondent did not get a free opportunity to cross-examine every potential witness in the case whether the Crown wished to call them or not. I find no merit to this submission.

[88] The Supreme Court, in Cook, went on to point out that the defence could call a witness who had made previous inconsistent statements and put those inconsistencies to that witness. In addition, it would be possible for the trial judge to call the witness and allow for the defence to cross-examine that witness.

[89] Most importantly the Supreme Court in Cook stated at para. 43:

In summary, I am of the view that existing procedures adequately protect unfairness suffered by the accused in this regard. It cannot therefore be said, subject to the exception noted above, that failure of the Crown to produce a witness unfairly deprives the accused the ability to cross-examine.

The Disclosure Issue

[90] The issue of disclosure occupied much of the Stay Application before Watson J. and this appeal. It is important that this issue must be looked at within the context of the pre-trial conferencing that has become an essential procedure within both the civil and criminal process.

[91] As Justice Hill stated in Judicial Pre-Trial Conferences (Re), 2016 ONSC 6398, at para 8:

The Objective(s) of the JPT

[8] An overarching purpose of a pre-hearing conference is “to promote a fair and expeditious” trial: Criminal Code, s. 625.1; Criminal Proceedings Rules for the Superior Court of Justice (Ontario), Rule 28.05(9). “Pretrial conferences are necessary case management tools, conducive to the effective use of resources” (R. v. Konstantakos, 2014 ONCA 21, at para. 8) with at least one purpose of the JPT being “to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of time required to hear a case”: R. v. C.G.R., [2005] O.J. No. 3764 (C.A.), at para. 30.

[9] Rules of Court do not exist simply to have rules. The Criminal Proceedings Rules for the Superior Court of Justice (Ontario), enacted pursuant to s. 482(1) of the Criminal Code, after consultation with the criminal Bar, have as an objective the fair and efficient dispensation of the criminal process.

[10] Compliance with the Rules, including ‘Criminal Proceedings Rules for the Superior Court of Justice (Ontario), Rule 28 Pre-Hearing Conferences’, is essential to avoid unnecessary delay and disruption of case and judicial scheduling. Knowledge of, and compliance with, the Rules are not optional. As observed in R. v. Boardman, [2015] EWCA Crim 175, at paras. 1-2:

“It is … necessary to ensure that the scarce resources are not wasted or used inefficiently. Demands on public funds must be kept to a minimum while, at the same time, ensuring that the delivery of justice is effective and meets the highest standards that any democratic society is entitled to expect.”

[92] This case was managed in the Ontario Court of Justice by O’Donnell J. The first judicial pre-trial was held on July 13, 2017.

The Pre-trial and Discovery Process

[93] At the conference, the defence advised that it was considering bringing an application for disclosure of all police occurrence reports pertaining the complainant.

[94] The Crown took the position that the police occurrence reports were unrelated to the events of February 15, 2017 and were third party records. If the defence wanted to pursue their disclosure, they should bring an O’Connor application.

[95] It is significant to note that the pre-trial Judge directed that if the defence wanted to bring an application for disclosure of these records, that application needed to be brought by August 9, 2017.

[96] No Application for disclosure was brought by August 9, 2017.

[97] In an email from the Crown, at this time (Michael Perlin) to defence counsel, Joseph Markson, on August 11, 2017, the Crown asked Mr. Markson if he had decided whether he needed time before a trial for a 3rd party records application.

[98] Mr. Markson did not reply to that question by Crown. The Crown and defence proceeded to set up a time to talk to the trial co-ordinator to set trial times.

[99] On August 15, 2017, the Crown, once again sought clarification from the defence as to whether or not they were going to bring a 3rd party application.

[100] On August 23, 2017, the Crown sent a further email to one of the defence counsel, Kate Robertson. In that email he confirmed that the Crown would be speaking to the matter in November to set trial dates in January and that there was one recent disclosure request that the Crown would be responding to shortly. Other than that, the Crown’s email goes on to state that they wanted confirmation from the defence that they did not foresee any other issues that must be addressed before the trial. Ms. Robertson replied on August 28, 2017 that: “if any pre-trial motions become necessary, they will be brought within the requisite deadline.”

[101] On September 7, 2017 the Crown sent a letter to defence counsel Joseph Markson. This letter stated in part:

I wish to raise an additional issue. At the judicial pre-trial on July 13, 2017, you advised the Court that,

(i) you were contemplating bringing a third-party records application, and (ii) you would decide and advise of your decision by the return date of: August 9, 2017.

I made inquiries of your office with respect to your decision on this issue on August 11, August 15 and August 23, and have not received a response. On August 28, Ms. Robertson wrote to me indicating, “[o]ur agent was also advised in court [on august 25, by the Crown’s agent] that the Crown was requesting confirmation with respect to any pre-trial applications. If any pre-trial motions become necessary they will be brought within the requisite deadline.”

The Crown is concerned that should you decide to bring a third-party records application at this point, with the trial dates now having been set and approaching, it may result in delay. If this occurs, the Crown will take the position that any resulting delay should be attributed to the defence.

[102] At the Court attendance on August 25, 2017 the trial was set to take place from January 23 to January 26, 2018.

[103] The Defence did not raise the issue of their intention to seek disclosure of the occurrence reports again until November 2017. At the trial readiness judicial pre-trial, the defence told O’Donnell J. that they might still bring an application for the records. It was agreed between the parties and the PTJ that if an application was needed, counsel would take the steps to move the matter forward.

[104] On November 14, 2017, the defence counsel wrote to the trial co-ordinator to schedule a records production application for a full day hearing. The application was scheduled to be heard January 11, 2018, only 12 days prior to the start of the trial.

[105] On November 22, 2017, the pre-trial judge, O’Donnell J (PTJ) sent an email to the defence and Crown. That email stated that when trial dates for January 23-26, 2018 were confirmed, the issue of a possible O’Connor application was still live, subject to discussion that was supposed to take place between counsel during the week of November 14. O’Donnell J. wanted counsel to advise whether the trial dates could be confirmed as an application may place the trial date in jeopardy.

[106] O’Donnell J. sent a second email to counsel on that same day asking whether counsel were “absolutely certain that the timing will allow the application to proceed and give the applications judge adequate time to deal with the issue and ensure the trial dates will not be compromised or lost.”

[107] On November 24, 2017, defence counsel wrote to the PTJ and expressed their hope that the January 11, 2018 application will not derail the trial dates. They further advised the PTJ and Crown that they did not feel that the legal issues and factual issues to be addressed in the application to be complex and submissions would be completed within the time allotted.

[108] That same day, the defence advised the PTJ and Crown that it remained their position that the materials sought are “Stinchcombe” materials and that the application is unnecessary given the authoritative precedents from the Court of Appeal and Superior Court of Justice.

[109] On November 24, 2017, the Crown sent an email to the PTJ and defence counsel advising that the Crown would simplify the issue of 3rd party records application by confirming that the Crown would not call the complainant as a witness at trial and therefore the content of occurrence reports were not likely relevant to an issue at trial or the conduct of the defence. The Crown stated that its case would rest on the video and audios taken at the scene on that evening. The Crown also advised that the complainant was under subpoena and would be available if the defence wished to call him.

[110] On December 6, 2017, the defence requested an adjournment of the trial dates in January in order to accommodate their records application. The defence also stated that they were content to clearly waive 11(b) of the Charter. The January dates were vacated by the PTJ and rescheduled to May 30, 31, June 1 and July 11, 2018.

[111] In December 2017 the Crown conceded that records that were referred to as “MDT records” would be produced along with three other occurrence repots that involved violence on the part of the complainant. The Crown took the position that these reports were “likely relevant for the stage one part of an O’Connor Application”. The Crown continued to take the position that the remainder of the occurrence reports were not “likely relevant”.

[112] On January 11, 2018, the records application was commenced. It resulted in an agreement between the Crown and defence. A transcript of the proceeding reveals the nature and substance of that agreement:

…the Crown and defence have reached, again, a conditional agreement for reasons that Mr. Peril will explain, but I think there’s a fair probability this will succeed. Your Honour very generously offered to review the documents and to determine relevance. If we may be so bold as to take you up on that generous offer, with the understanding, from both the Crown and defence, that your Honour will not rule and there will be no need for a ruling to determine which form of application or burden would apply whether it’s Stinchcombe or McNeil of O’Connor. So there would be no need for any legal ruling from the court on that point, simply a consensual surrender to the court of all the relevant documents, an invitation from both the Crown and defence for you sir, to review it as you see fit as informed by the submissions you have received today and the application records before you…

The understanding would be should Your Honour proceed with and accept that burden, that workload, then, upon the conclusion of your review, the court would release the documents identified as relevant… Your Honour would provide the identified documents for provision to the Crown and to Niagara Regional Police Services for any [V]etting purposes you may direct…

[113] Following the court’s examination of the records in dispute, a small portion of the materials were ordered to be produced to the defence. This amounted to less than half of one banker box from a total of approximately 166 occurrence reports contained in 5 banker boxes of occurrence reports.

[114] The Respondent subsequently filed a Notice of Application, dated August 1, 2018, for a stay of proceedings based on an alleged abuse of process. The application proceeded before the assigned trial judge, His Honour Judge R.C.B. Watson. The parties adduced evidence on the application on October 2 and 15, 2018. On June 28, 2019, the application Judge announced that the application was granted and ordered a stay of proceedings, with reasons to follow. The Ruling on the application was ultimately released on August 29, 2019.

The R. v. Tout Issue

[115] Part of the reason Watson J. felt that the Crown’s conduct was so shocking that a stay for abuse of process was the only remedy, was his finding that the Crown did not disclose a decision of the Superior Court of Justice by Justice Forestell in R. v. Tout, Elliot, Taylor, Douglas. This decision was released on August 24, 2017 but later placed under seal on November 9, 2017.

[116] In Tout, the court considered whether background occurrence reports relating to a Crown witness were properly characterized as first-party or third-party records. When the Crown took the position at the Grant JPT on July 13, 2017, the Tout decision had not yet been released.

[117] The Crown takes the position that during the period in which the Tout decision was released and not sealed (August 24, 2017 to November 9, 2017) the issue of disclosure of the occurrence reports in this Grant case was not a live issue. The defence had not followed the direction of Justice O’Donnell and gave no indication if it was going to bring an O’Connor Application by August 9, 2017.

[118] On November 9, 2017, the defence in this Grant case contacted the Crown in order to discuss the next morning’s JPT before O’Donnell J. On that same day, the defence sent to the Crown the cases that it was going to rely on to support its position that the background occurrence reports were Stinchcombe disclosure requirements and not the proper subject matter of an O’Connor, third party application.

[119] It should be noted that the Sealing Order Application brought by the Crown in Tout was the same Crown dealing with the disclosure issue in this Grant case. It also should be noted that the sealing order in Tout was brought on an ex-parte basis.

[120] On November 9, 2017, Forestell J. ordered that the complete file, including any rulings be sealed until a redacted version could be prepared that would not expose any privileged information, including informant privilege.

[121] A redacted version of Forestell J.’s ruling was subsequently released. In her ruling Forestell J. considered the law relating to whether, in that particular case, the Stinchcombe or O’Connor disclosure requirements applied. Commencing at para. 48, she stated:

[48] There are three regimes governing the disclosure and production of potentially private or personal information to the defence: (1) presumptive disclosure of the contents of the investigation file in the possession of the Crown (Stinchcombe disclosure); (2) the common law regime for the production of relevant records containing private information in the possession of third parties (O’Connor production and disclosure); and (3) the statutory regime for the production of records containing personal information in sexual assault cases (Mills production and disclosure)

[49] Where the material sought falls within Stinchcombe, the presumptive disclosure regime, no application by the accused is necessary. For O’Connor and Mills disclosure, the accused must apply for the material sought, the record holder and any third party with a privacy interest in the records must be notified, and the accused must establish the likely relevance of the material.

[49] Our Court of Appeal recently considered the distinction of the first party and third-party disclosure in R. v. Jackson, 2013 ONCA 390. Watt J.A writing for the Court, explained the proper approach to the determination of the issue as follows:

[91] Two principal factors determine the disclosure/production regime that will apply when an accused seeks disclosure or something the Crown has not provided. The first has to do with the nature of the information of which disclosure/production is sought. The second concerns who is in possession or control of that information.

[51] In Jackson, Watt J.A also explained that the term “fruits of the investigation” refers to material that is related to the case against the accused. He stated as follows:

[92] Turning first to the nature of the information. The descriptive “fruits of the investigation” accurately captures the subject matter of first party/Stinchcombe disclosure. The term embraces relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as will as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of the material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.

[93] In its normal, natural everyday sense the phrase “fruits of the investigation” posits a relationship between the subject-matter sought and the investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of that investigation. The information includes, but is not co-extensive with, evidence, much less admissible evidence.

[52] In addition to the traditional “fruits of the investigation”, McNeil imposes a duty on the Crown and the police to disclose information that would not normally fall within the “fruits of the investigation”, but would be of importance to the defence. Material that is “obviously relevant” to the accused’s case forms part of the first party disclosure obligations. In McNeil, the material in question was police misconduct files, but the principles in McNeil are not restricted to police misconduct files.

[59] In my view, the proper approach to the issue of whether material sought is subject to first party presumptive disclosure or the O’Connor third party regime is to consider, as Watt J.A. explained in Jackson, the nature of the information and who is in possession or control of the information. “Fruits of he investigation” means material that is meaningfully related the accused’s case. It includes acquired by means and in consequence of the investigation. The information must be in the possession by the prosecuting Crown or the Crown must be able to obtain it.

[122] In her concluding remarks in the Tout decision, Forestell J. stated at para 84:

[84] The occurrence reports relating to Mr. Tran are related to the investigation of the Applicants. A central issue in the case is the state of knowledge of the Applicants…

[redactions]

At least some of the information that the Applicants possess was accessible to them through computer searches that would disclose occurrences and other information about Mr. Tran. Additionally. Evidence of criminal activity that would impact on Mr. Tran’s credulity is clearly relevant.

[123] As noted above, Forestell J.’s reasons that were eventually released were heavily redacted in part due to the need to protect important privileges in that case. A portion of the reasons, as they relate to that case, had specific issues that the court was dealing with in Tout and they are understandably missing in order to protect certain privileges.

[124] The determination of this issue of disclosure/production and whether such disclosure/production is properly Stinchcombe or O’Connor is governed by the framework established in R. v. McNeil, 2009 SCC 3, R. v. Quesnelle, 2014 SCC 46, and R. v. Gubbins, 2018 SCC 44.

[125] In McNeil, the Supreme Court clarified the requirements under the Stinchcombe regime and stated that the Crown has a duty to make reasonable inquiries when put on notice of materials in the hand of the police that is potentially relevant: (para 49).

[126] There are two branches of materials that warrant disclosure. First, the police have a corresponding duty to disclose material pertaining to an accused’s investigation, or the “fruits of the investigation”: (at para 23). The “fruits of the investigation” is defined as “information generated or acquired during or as a result of the specific investigation into the charge against the accused”: (Gubbins, para 22); and posits a relationship between the subject matter sought and the investigation that leads to the charges against the accused. Second, McNeil requires disclosure of information that is “obviously relevant” to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence: (Gubbins, para 23).

[127] The Crown argues the controlling case is R. v. Thompson, 2009 ONCA 243, where the Ontario Court of Appeal upheld the trial judge’s decision to deny an application for disclosure of police files under the O’Connor regime. The defence in Thompson was seeking the police records of a third-party suspect arguing the records were necessary for full answer and defence. The trial judge found no nexus between the victim and the third-party suspect and the commission of the offence and denied disclosure. The Crown seeks to rely on the Court of Appeal’s statement that “the appellant properly proceeded with an O’Connor application as the way to seek production of the police files”: (Thompson, at para. 11), to argue that disclosure of police files is subject to O’Connor.

[128] The Crown argues it was a legal error for Watson J. to not consider Thompson in this case.

[129] The defence argues Thompson is not the most controlling case and further, Quesnelle was released after Thompson and considered by Watson J. extensively.

[130] The defence also cites the case of York (Regional Municipality) v. McGuigan, 2019 ONCA 1062. The facts of that case are not relevant. The significance of this case is that it provides a brief overview of the legal framework on disclosure.

[131] The Court of Appeal reiterates McNeil, Quesnelle, and Gubbins to say that the crown as a Minister of Justice, is not an ordinary litigant, but duty-bound to seek justice and to avoid wrongful convictions. As such, the defence should not need to bring a third-party record application to secure relevant information in the hands of the investigating police force.

[132] I agree with the fact that the crown is not an ordinary litigant and is duty-bound to seek justice and avoid wrongful convictions. However, in the facts of this case this disclosure issue was extensively considered between the crown and the defence. In addition, it was extensively considered by an experienced case managing Justice through lengthy and multiple pre-trial conferences.

[133] I find that the trial judge erred in holding that the occurrence reports sought by the defence in this case were “obviously relevant” and therefore subject to the Stinchcombe procedure. Nevertheless, in the circumstances of this case, the issue was not only managed in the pre-trial setting, there was an agreement that was reached between the crown and defence on how to proceed.

[134] The appellate jurisprudence preceding Tout provides an ample framework to determine whether the police occurrence reports are governed under first or third-party disclosure.

[135] However, the arguments over the importance of the applicability of Tout sidesteps the ultimate issue.

The Ultimate Issue with Respect to Tout

[136] The ultimate issue in an abuse of process motion is: does the non-disclosure of Tout violate fundamental principles underlying the community’s sense of decency and fair play? Or, does the non-disclosure of Tout imperil the accused’s right to a fair trial in an ongoing manner that cannot be rectified by means other than a stay of proceedings?

[137] In my view, the crown, Mr. Peril, should have disclosed to the defence counsel the essence of the decision of Justice Forestell in Tout. This could have been done in such a manner as to caution counsel relative to the issue of concerns for the protection of privileges in Tout and the matter could have been discussed by counsel before Justice Forestell and or the PTJ, O’Donnell. Having said that, I do not feel that this represents crown misconduct in the circumstances of this case.

[138] I am of the view that the ratio in Tout does not significantly impact the law on this issue. I find that, given the legal framework as enunciated in all of the above-mentioned cases on this issue, the crown was taking a reasonable position with respect to the disclosure of massive amounts of occurrence reports that they felt were not clearly relevant and should be a part of an O’Connor Application. This finding is reinforced by the fact that upon the review by the Justice as part of the agreement of the parties, the majority of the occurrence reports were found not to be relevant.

[139] The defence was also taking a reasonable position that the occurrence reports were part of Stinchcombe production requirements up to the point that there was an agreed upon judicial review of the documents as stated above.

[140] To the credit of both the crown and defence, they took up O’Donnell J.’s offer to review the boxes of occurrence reports without the necessity of ruling on which production/disclosure regimen applied. The results of the review demonstrated only about three quarters of one banker box out of five boxes were relevant.

[141] I find that the trial judge made a reversible error in his finding that the defence was prejudiced by not being able to have a fair trial and that prejudice could not be remedied by means other than granting a stay.

[142] If the defence was still of the view, that disclosure was not adequate, despite the agreed judicial review of the documents, they could have asked for a further adjournment of the trial and detailed what disclosure was lacking. This alternative was not addressed by the applications judge.

[143] I agree with R.F. Goldstein J. in R. v. Nowack, 2019 ONSC 5345, commencing at para. 50:

[50] There is no question that an accused person is entitled not only to disclosure, but timely disclosure. Disclosure is not a separate right. It is a constituent of the right to make full answer and defence. Disclosure makes full answer and defence possible. Timely disclosure allows the defence to explore potential avenues of investigation: R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. An accused person must establish that the Crown has failed to make timely disclosure of relevant material. In order to obtain a remedy, however, he or she must then show actual prejudice to the right to make full answer and defence: R. v. O’Connor, [1995] 1 S.C.R. 411 at para. 74; R. v. Spackman, 2012 ONCA 905 at para. 111.

[51] Diligence in requesting disclosure is also a factor. Disclosure is rarely perfect and the process is prone to human error. It is inevitable in a complex case with voluminous disclosure that things will be missing or incomplete. Thus, an accused person must bring a disclosure failure to the Crown’s attention in a timely way: R. v. Stinchcombe, [1991] 3 S.C.R. 326 at para. 24. Failure to do so is something a trial judge may consider when determining if there has been prejudice to the accused’s right to a fair trial: R. v. McQuaid, [1998] 1 S.C.R. 244. As Cory J. stated at para. 38 (in part):

[144] In my view, the overwhelming evidence that was not considered by Watson J. was that the issue of disclosure was always the subject matter of the mandatory pre-trial conferencing process. Within that process, directions and guidance were given. Multiple conferences were requested by the parties and they proceeded. The matter moved forward in a fair and expeditious manner as contemplated by the purpose of the Rules of Criminal Procedure. It was an error by the trial judge not to consider how this conferencing process impacted the disclosure issue.

Trial Judge’s Improper Analysis of the Babos Test

[145] The following represents a summary of the trial judge’s improper analysis and application of the Babos test:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan at para. 54). A thorough review of all of the evidence does not support a finding that the accused’s right to a fair trial and or the integrity of the justice system “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”.

(2) There must be no alternative remedy capable of redressing the prejudice. If I am wrong in my finding that there was no prejudice to the degree required in paragraph (1), there was ample evidence, not considered by the trial judge, that reasonable alternatives were available other then resorting to the most drastic and rare remedy of granting a Stay under all of the circumstances of this case.

(3) Where there is still uncertainty over whether a stay is warranted after steps (a) and (b), the court is required to balance the interest in favour of granting a stay against the interest that society has in a final decision on the merits. The trial judge stated that he did not have to enter into the balancing required by the third step. Nevertheless, Watson J. stated at par. 53:

[53] The “main’ and “residual” category are both at play in this case. Given that I have found that the “residual” is at play in this case I will embark on a balancing exercise. I find that there is no uncertainty over whether a stay is warranted in these proceedings and this it is not strictly speaking necessary to embark upon a balancing exercise; however, I will do so in any event. The conduct of Mr. Love, the NRPS and the Crown in this case must be denounced. The integrity of the justice system in this case harmed, is imperiled and tarnished. An objective member of the public having thoroughly reviewed this proceeding in this Court’s opinion would find that there cannot be a fair trial and a final decision on the merits cannot be arrived at.

[146] Watson J. went on to state at para 55:

The conduct of the state in this case is serious, this Court must dissociate itself from it. The conduct in this case I find would shock the community’s conscience and would offend its sense of fair play and decency. See Babos, supra, at paragraphs 43, 44 and 45.

[147] I am guided by the direction of the Supreme Court of Canada in R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68 recognizing that there will be “rare occasions – the clearest of cases” – when a stay of proceedings will be warranted. This principle was re affirmed by the Supreme Court in Babos.

[148] This case is not one of those rare and clearest of cases referred to in O’Connor and Babos.

[149] I find that the trial judge erred in his application of the law and he made multiple significant reversible errors of fact as set out in the above analysis. His finding that the community’s conscience would be shocked, and its sense of fair play and decency would be offended is not supported in the evidence.

[150] In my view, any reasonable person having reviewed all of the surveillance audio/videos of the night in question would be shocked and appalled by the images of a police sergeant assaulting a vulnerable person with mental health challenges. If these charges do not go to trial, the administration of justice would be certainly be held in disrepute.

[151] For all of the above reasons, the Appeal is allowed.

[152] The stay of proceedings is quashed.

[153] This matter shall be returned to the Ontario Court of Justice in St. Catharines, to be tried by a judge other then the judge who presided at the application for a stay of proceedings.

The Honourable R. J. Harper

Released: April 20, 2020