Her Majesty the Queen v. Truscott [Indexed as: R. v. Truscott]

81 O.R. (3d) 689

Court of Appeal for Ontario,

McMurtry C.J.O., Doherty, Weiler, Rosenberg and Moldaver JJ.A.

June 14, 2006

Criminal law -- Appeals -- Powers of appellate court -- Court of Appeal being directed to hear Reference by Minister of Justice as if it were appeal by accused on issue of fresh evidence -- Respondents having produced documentary about accused's 1959 conviction for first-degree murder -- Crown seeking order compelling respondents to produce recordings of interviews conducted with certain individuals most of whom testifying at trial or on appeal or being interviewed by the police decades ago -- Court having power under s. 683(1)(a) of Code to issue production order against third party where it is in interests of justice to do so -- Crown arguing helpful to appellate court assessing credibility and reliability of proposed fresh evidence tendered by accused -- Order granted except with respect to interview with defence expert not testifying in earlier trial or appeal and whose evidence could not have been affected by interview with respondents nor subject to fading memory -- Crown's application partially granted -- Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)

The Court of Appeal was directed to hear a Reference by the Minister of Justice as if it were an appeal by T from his 1959 conviction for first degree murder on the issue of fresh evidence. In the course of producing a documentary about that conviction, the respondents had interviewed people involved with the case. The Crown brought an application for an order under s. 683(1) of the Criminal Code compelling the production of recordings and transcripts of those interviews. The respondents resisted the application, arguing that the court did not have the power under s. 683(1)(a) to issue a production order against a third party to assist the Crown in its investigation and that the Crown should be required to follow the "Special Procedures and Powers" provisions in Part XV of the Code, which deal with search warrants and production orders.

Held, the application should be granted in part.

The plain wording of s. 683(1)(a) of the Code empowers the appellate court to make an order compelling production of material that is connected with proceedings before it "where it considers it in the interests of justice". The interests of justice are informed by the particular context of the case before the court. This appeal was a fresh evidence appeal from a conviction that was entered some 47 years ago. It was clearly in the interests of justice that the parties were able to put before the court any "writing, exhibit or other thing" that might shed light on the credibility and reliability of the evidence being tendered by the parties in the proceedings. The Crown was not seeking to use s. 683(1)(a) as an evidence- gathering tool. The relevance of the requested material lay in its ability to assist the court in deciding the admissibility of fresh evidence being tendered by the parties. Section 487.012 of the Code had no application to the issuance of a production order in this case. [page690]

The respondents had only retained three video recordings. It was in the interests of justice that the parties be given two of those recordings. The third recording was of an interview with an expert who prepared a 2001 report addressing pathology aspects of the death of the victim. The expert did not provide evidence at trial or at the Reference to the Supreme Court of Canada in 1966. The court would not be assisted in the task of assessing the weight to be given to that witness' expert opinion by having access to the respondents' interview with him. It was not in the interests of justice that that interview be produced.

APPLICATION by the Crown for a production order.

Statutes referred to Canadian Charter of Rights and Freedoms, ss. 2, 8 Criminal Code, R.S.C. 1985, c. C-46, ss. 487.012 [as am.], 683(1), 690 [now 696.1], 696.3(3) [as am.], Parts XV, XXI

Rosella Cornaviera, Gregory J. Tweney, Alexander Alvaro and Leanne Salel, for applicant. Paul B. Schabas and Ryder L. Gilliland, for responding parties. James Lockyer, Philip Campbell, Marlys Edwardh and Hersh E. Wolch, Q.C., for appellant.

[1] Endorsement by THE COURT: -- In the context of a Reference to this court directed by the Minister of Justice under s. 696.3(3)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, the applicant Crown applies in writing for an order under s. 683(1)(a) of the Code compelling the respondents, Julian Sher, Theresa Burke and the Canadian Broadcasting Corporation, to produce to the parties all audio, video, digital recordings and verbatim transcriptions of interviews conducted with eight individuals: Dr. David Hall Brooks, Sandra Stolzmann, Catherine Beaman, Karen Daum, Robert Lawson, Dr. John Butt, Supt. H.M. Sayeau and Commissioner H.H. Graham (deceased).

[2] The circumstances giving rise to this application are as follows. The respondent, Julian Sher, in his capacity as a producer for the CBC programme, "The Fifth Estate", co-produced a documentary about the 1959 conviction of Steven Truscott for the first degree murder of Lynne Harper entitled, "His Word Against History". The documentary first aired in March 2000. Sher also authored a book about the Truscott case entitled, Until You Are Dead: Steven Truscott's Long Ride into History, which was published in October 2001. The respondent Burke was a co-producer of the documentary and did research for Sher's book.

[3] In the course of their research into the Truscott case, Sher and Burke interviewed many people involved with the case, including people who had provided statements to police in 1959 or who were witnesses in the Truscott trial. Many of these individuals were [page691] subsequently contacted by counsel for Mr. Truscott. Several of them provided affidavits that were filed in support of Mr. Truscott's November 2001 application to the Minister of Justice under s. 690 [now s. 696.1] of the Criminal Code for relief against his conviction.

[4] Four of the eight witnesses in respect of whom the Crown seeks a production order against the respondents provided sworn affidavits that the appellant submitted in his application to the Minister. Seven of these eight witnesses [See Note 1 below] were interviewed before the Honourable Fred Kaufman by his investigative counsel, Mark Sandler, during the investigation that was conducted on behalf of the Minister in relation to Mr. Truscott's application for ministerial review.

[5] On October 28, 2004, the Minister referred the case to our court and directed that we hear the Reference "as if it were an appeal by Steven Murray Truscott on the issue of fresh evidence". On November 30, 2005, the Crown wrote to the respondent Sher requesting that he turn over the audiotapes or transcripts of interviews that he or Burke had with 14 individuals who are the source of evidence that is being introduced in the fresh evidence appeal. An exchange of correspondence ensued, with the respondents taking the position that they would not turn over any of the requested material. On April 27, 2006, the Crown commenced the present application in respect of the eight witnesses listed above.

[6] In correspondence dated June 6, 2006, the respondents advised the Crown that they have not retained the majority of the audiotapes or other records of their interviews with the eight witnesses. The only material they have retained is the following:

(1) Video recording of an interview with Mr. Lawson;

(2) Video recording of an interview with Dr. Butt; and

(3) Video recording capturing voice recording (only) of an interview with Commissioner Graham (brief).

[7] The Crown notes that Mr. Lawson has consented to the release of his interview, as has the family of Commissioner Graham.

[8] The respondents' primary position in resisting the Crown's application for production is that this court does not have jurisdiction under s. 683(1)(a) of the Code to make the order requested by the Crown. According to the respondents, s. 683(1)(a) does not empower the court to issue a production order against a third party to assist the Crown in its investigation. [page692]

[9] We do not agree with the respondents' submissions on jurisdiction or with their characterization of the purpose of the requested order. Part XXI of the Criminal Code sets out the powers of provincial courts of appeal. The plain wording of s. 683(1)(a) empowers the appellate court to make an order compelling production of material that is connected with proceedings before it. Subsection 683(1)(a) states:

683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(a) order the production of any writing, exhibit or other thing connected with the proceedings; . . .

[10] The scope of the phrase in subsection (1)(a), "a writing, exhibit or other thing connected with the proceedings", must be defined by referring to the overriding concept of the "interests of justice" that is to guide the exercise of the court's discretion under s. 683(1). The interests of justice are informed by the particular context of the case before the court. This appeal is a fresh evidence appeal. Moreover, it is an appeal from a conviction that was entered some 47 years ago. It is clearly in the interests of justice that the parties are able to put before the court any "writing, exhibit or other thing" that may shed light on the credibility and reliability of the evidence being tendered by the parties in the proceedings.

[11] The respondents submit that the Crown is using s. 683(1) (a) as an evidence-gathering tool and that the Crown should therefore be required to follow the "Special Procedures and Powers" provisions in Part XV of the Code, which deal with search warrants and production orders. We do not agree with the respondents' characterization of the purpose of the Crown's application. The interviews by Sher and Burke of the witnesses are not expected to yield evidence of the commission of an offence, as is contemplated by the search warrant and production order provisions in Part XV of the Code. Rather, the relevance of the requested material lies in its ability to assist the court in deciding the admissibility of fresh evidence being tendered by the parties.

[12] The respondents further submit that the Crown has not established a sufficient basis to compel production, having regard to the criteria for issuing a search warrant under s. 487.012 of the Criminal Code and having regard to ss. 2(b) and 8 of the Canadian Charter of Rights and Freedoms. For the reasons given above, s. 487.012 of the Criminal Code has no application to the issuance of a production order in this case. The Crown is not conducting a criminal investigation, nor is it attempting to obtain evidence of the commission of an offence. Rather, it is [page693] attempting to procure material that may assist the court in determining the credibility and reliability of fresh evidence being tendered on this appeal.

[13] The respondents have not attempted to adduce evidence to support their claim that the requested order will limit freedom of expression or impair the functions of the media. The respondent Sher baldly asserts in his responding affidavit that granting a production order in this case will have a chilling effect on investigative reporting and will compromise journalistic independence by turning the media into an "arm of the state". We see no basis in the evidence for these assertions. The witnesses who gave the interviews in question were aware that the respondents were producing a documentary that would be televised. There is nothing in the record to suggest that the respondents entered into confidentiality agreements with any of the witnesses. Moreover, Mr. Lawson and the family of Commissioner Graham have consented to the release of those two interviews. [See Note 2 below]

[14] It thus falls to be decided whether the Crown has demonstrated that it is in the interests of justice under s. 683(1)(a) that the respondents produce to the parties any of the limited material that they have retained.

Video Recording of an Interview with Robert Lawson

[15] Mr. Lawson's family owned the farm where Lynne Harper's body was found. He testified at the trial in 1959 as a witness for the Crown. Mr. Lawson was interviewed by the respondents in preparing their documentary in the late 1990s. Mr. Lawson provided information to them that he had not testified to at the trial. Over a year following his contact with the respondents, Mr. Lawson swore an affidavit in support of the appellant's application to the Minister under s. 696.1 of the Code. This affidavit referred to the same new information. He also testified under oath before the Honourable Fred Kaufman regarding this new information. The Crown intends to cross- examine Mr. Lawson in the current proceedings.

[16] It is in the interests of justice that the parties be given the videotape of Mr. Lawson's interview with the respondents so that the court will be in a better position to assess the credibility and reliability of the fresh evidence from Mr. Lawson. With the production of this interview, the parties will be able to point to either consistencies or inconsistencies in statements made by Mr. Lawson [page694] prior to his involvement with Mr. Truscott's review application. The parties will also be able to make submissions as to whether the respondents' manner of questioning Mr. Lawson had any impact on his recollections of events that took place over 40 years before the interview.

Video Recording of an Interview with Dr. Butt

[17] Dr. Butt is an expert on the subject of the pathology of sudden death and serious injury. He prepared a report dated October 2001 addressing pathology aspects of the death of Lynne Harper. The appellant relied on this report in his application to the Minister and he is also relying on that report in the appeal to this court. Dr. Butt, as an expert witness, is in a different category of witness than Mr. Lawson. Dr. Butt did not provide evidence at the trial or at the Reference to the Supreme Court of Canada in 1966. There is no issue whether Dr. Butt's memory has faded or has been affected by interviews with the respondent journalists. The court would not be assisted in the task of assessing the weight that is to be given to Dr. Butt's expert opinion by having access to the respondents' interview with him. Accordingly, it is not in the interests of justice that this interview be produced.

Video Recording Capturing Voice Recording (only) of an Interview with Commissioner Graham

[18] Commissioner Graham, formerly Inspector Graham, was the Ontario Provincial Police officer in charge of the Truscott case in 1959. The appellant is not relying on any fresh evidence from Commissioner Graham, aside from reports or notes that he prepared around the time of the trial and the 1966 Reference that allegedly were not disclosed to the defence. This court is not being asked to determine the credibility or reliability of testimonial fresh evidence from Commissioner Graham. However, the Crown asserts that there is an issue in this appeal as to whether Commissioner Graham was in fact the author of certain notes that the appellant is relying on as part of his documentary fresh evidence. It is possible that Sher or Burke raised this issue in their interview with Commissioner Graham. It is thus in the interests of justice that the parties be given the videotape of this interview because it may assist the court in determining the authorship of certain documentary fresh evidence that is being relied on by the appellant.

[19] Accordingly, the respondents are ordered to turn over the videotapes of the interviews with Mr. Lawson and Commissioner Graham to the parties. The parties are to receive these videotapes on their undertaking that this material is to be used only [page695] for the purpose of facilitating this court's determination of the admissibility of the fresh evidence of Mr. Lawson and the authorship of certain documentary fresh evidence of Commissioner Graham that is being tendered on the Reference.

[20] The circumstances do not support the respondents' request for an award of costs against the Crown. This is particularly so given that the Crown was not made aware that the respondents no longer retained the majority of the requested materials until the due date for filing its reply factum on the application.

Application granted in part.

Notes

Note 1: Commissioner Graham died one month before Mr. Truscott filed his application to the Minister.

Note 2: We refrain from deciding what, if any impact, one or the other or both of these factors may have had.