R. v. Li, 2007 ONCA 308

CITATION: R. v. Li, 2007 ONCA 308

DATE: 20070424

DOCKET: M33864-C41995

COURT OF APPEAL FOR ONTARIO

DOHERTY, BORINS and FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RAYMOND WAI-MING LI

Applicant

COUNSEL:

John R. Mann III for the applicant

Cindy Afonso and Fergus O Donnell for the respondent

George Cowley for the Chief of Police, Toronto Police

Andrew Vaughan for Ms. L. (also known as Ms. D.)

Jinan Kubursi for the Ministry of Community Safety and Correctional Services

Heard: April 11, 2007

On appeal from the conviction entered by Justice Frank R. Caputo of the Superior Court of Justice on December 19, 2003.

Reasons for Decision

DOHERTY J.A.:

[1] This is a production motion brought by the appellant in connection with a proposed application to adduce fresh evidence on his appeal. The appellant has sought the production of various documents on this appeal over the last year-and-a-half. He now seeks production of documents in the possession of the Ministry of Community Safety and Correctional Services (the “Ministry”). The documents sought by the appellant relate to certain information provided to security personnel at the Toronto Jail. The information pertains to the alleged smuggling of contraband, including drugs, into the Toronto Jail by a correctional officer employed there, Ms. D. (also known as Ms. L.). The information was apparently provided to the security personnel at the jail by inmates between November 2000 and March 2002.

[2] The appellant, a lawyer, was convicted of supplying his client, who was an inmate at the Toronto Jail, with narcotics while visiting that inmate at the jail in November 2001. According to the evidence adduced at trial, the drugs were found secreted on the inmate immediately after his visit with the appellant. It was the Crown’s case, based primarily on the evidence of correctional officers, that the appellant had the exclusive opportunity to provide the inmate with the drugs. The Crown also relied on certain post-offence conduct by the appellant. The defence maintained that someone other than the appellant had supplied the drugs to the inmate. The appellant testified and denied giving the inmate the drugs. There was evidence, accepted by the trial judge, that unknown persons other than the appellant had provided drugs to this inmate while he was in the Toronto Jail on other occasions.

[3] During the trial, some evidence was adduced concerning investigations into allegations that custodial officers were supplying inmates with drugs. By the end of the trial, the appellant was aware of the following:

• various inmates had accused Ms. D. of bringing contraband into the jail for inmates during 2002;

• Ms. D. had been investigated by the jail security staff and by the Toronto Police. No charges were laid as a result of the investigations; and

• on the day the appellant allegedly supplied drugs to his client, Ms. D. was working on the range where his client’s cell was located.

[4] The fact that Ms. D. was working on the range where the client’s cell was located was disclosed to the appellant after all the evidence had been entered at his trial, but before the judge had rendered his verdict. The appellant, acting for himself, although with some assistance from counsel, chose not to pursue the matter.

[5] In the course of this application, some additional information came to light. The Toronto Police investigation into Ms. D.’s activities continued until March 2002. That investigation was terminated by the police when Ms. D. was seen by police surveillance being escorted from the Toronto Jail property by Ministry staff. Counsel for Ms. D. on this application advised the court that Ms. D. was fired at that time. She filed a grievance that was eventually settled. Part of the settlement required the destruction of any part of Ms. D.’s employment record that referred to the reasons for her dismissal. The records filed under seal with the court contain no explanation for her dismissal and no reference to the subsequent settlement of her grievance.

[6] The records filed under seal with the court consist of a series of administrative summaries of information provided to the jail security staff by inmates. Most of the summaries contain allegations that Ms. D. was bringing contraband drugs into the jail for inmates and charging them a fee for that service. The material which was filed with the court also contains statements given by inmates in support of these allegations.

[7] The approach the court takes when an appellant seeks production of documents in the possession of a third party in connection with a proposed fresh evidence application is set out in R. v. McNeil (2006), 2006 ONCA 40087 (ON CA), 215 C.C.C. (3d) 22 at paras. 44-47 (Ont. C.A.), leave to appeal to S.C.C. requested [2007] S.C.C.A. No. 57. The moving party must first demonstrate that the material sought is “likely relevant” to the fresh evidence application: see paras. 39-44. If the moving party establishes that the material is “likely relevant”, the records are produced to the court. The court then examines the records and after receiving further submissions from interested parties, determines whether denial of access to the documents would unduly restrict the appellant’s ability to prosecute his or her appeal. At this stage of the inquiry, in addition to the effect of non-production on the appellant’s ability to prosecute his or her appeal, the court considers any potential adverse effect of production on the legitimate interests of others, including–but not necessarily limited to–privacy rights: see para. 47.

[8] A different panel of this court held in December 2006 that the appellant had demonstrated the “likely relevance” of the material in the Ministry’s possession. In so holding, the court was satisfied that there was a reasonable possibility that the material could assist the appellant in developing admissible evidence identifying someone other than the appellant as the source of drugs, and that such evidence could be received on appeal: see R. v. McNeil, supra, at paras. 40-42. This panel must consider the second stage of the inquiry outlined in McNeil. The factors to be considered at this stage of the analysis are set out in R. v. McNeil, supra, at para. 47.

[9] As indicated above, counsel for the Ministry supplied the court with copies of the relevant documents. Counsel also provided the court with copies that had been redacted to protect the identity of confidential informants and other third parties who are identified in the records, but who have no involvement in this matter. Counsel for the Ministry and counsel for the Crown argued that none of the records should be ordered produced. Alternatively, they argued that only the edited versions should be produced to the appellant.

[10] Ms. D. was represented on these proceedings. Her counsel stressed the significant privacy interests that Ms. D. has in the material found in the documents. We agree with counsel’s contention that Ms. D. has a legitimate and significant privacy interest in the material. It must be stressed that she has never been charged with anything arising out of the investigations conducted by the Ministry and the police in 2001 and 2002. The records contain serious allegations against Ms. D. She has had no opportunity to know the basis for these allegations or to refute them. The source of the allegations does not necessarily inspire confidence in their trustworthiness. In addition, all of the allegations are several years old.

[11] Ms. D.’s privacy interests, however, come up against the appellant’s prima facie right to access material that may be relevant to his proposed fresh evidence application. While it does not appear likely that the material in the possession of the Ministry will itself constitute fresh evidence, there is a realistic possibility that it could lead to material that would constitute admissible fresh evidence. Setting aside due diligence concerns for the moment, credible evidence indicating that Ms. D. was engaged in bringing contraband drugs into the jail for inmates, combined with evidence that Ms. D. had ready access to the appellant’s client shortly before the appellant met with the client, could potentially meet the criteria for the admissibility of fresh evidence on appeal and result in an order for a new trial. The appellant has a formidable claim to the production of this material in the legitimate pursuit of his appeal.

[12] Counsel for the Crown argued that the appellant had the opportunity at trial to pursue the claim that Ms. D. could have been the source of the drugs found on the appellant’s client. Counsel submits that the appellant decided not to pursue that line of defence at trial and should not be allowed to pursue it now, some four years later. This argument is essentially a claim that the appellant has not exercised due diligence in seeking to implicate Ms. D. in the supplying of the drugs. Even if one were to assume an absence of due diligence, that absence would not necessarily preclude the admissibility of fresh evidence on appeal to demonstrate that Ms. D. was potentially the source of the drugs. Nor is this a case where it can be unequivocally said at this stage that there was a failure to exercise due diligence. If the absence of due diligence does not necessarily mean the fresh evidence could not be adduced, it follows that the absence of due diligence should not preclude a production order. The question of whether the appellant exercised due diligence and, if not, what effect the failure to do so should have on a fresh evidence application are best left to the stage of the process at which the admissibility of any tendered evidence is considered: see R. v. McNeil, supra, at para. 69.

[13] I think a production order should be made. The privacy interests of Ms. D. can be protected with a non-publication order prohibiting publication of her identity or anything that could identify her as the person referred to in the records. The non-publication order should extend to the documents themselves. The documents are provided to counsel for the appellant on the implicit understanding that they will not be used for any purpose other than pursuing the fresh evidence application. The documents cannot be regarded as being in the public domain and no claim for access to them can be made on that basis. The documents cannot be disseminated or used for any purpose other than the proposed fresh evidence application.

[14] I agree with counsel’s contention that the edited version of the documents should be produced to counsel for the appellant at this time. I would also ask counsel for the Ministry to provide counsel for the appellant with a brief explanation for each redaction. Most are self-evident and I would hope that counsel can work out any disputed redactions.

[15] Having determined that production of the edited version of the material is appropriate, it is essential to add that production of the material should not delay the hearing of this appeal any more than is absolutely necessary. The appellant was convicted of a very serious offence over three years ago and sentenced soon afterwards. Since he launched this appeal, he has made various requests for production. Those requests have changed from time to time. He has been on bail throughout this prolonged and somewhat leisurely process. It is essential to the due administration of justice that this appeal be heard. The court was told that the appeal is perfected apart from the fresh evidence application.

[16] I see no reason why the edited version of the documents cannot be produced to the appellant immediately. While the appellant will have to take additional steps to prepare the fresh evidence application, those steps must also be taken without delay. Counsel will have ninety days from the release of these reasons to perfect the fresh evidence application. By perfect, I mean that all affidavits and any other material that will be relied on by the appellant in support of a fresh evidence application shall be served on the respondent and filed with this court within ninety days of the release of these reasons. I will assume case management responsibility for the appeal.

RELEASED: “DD” “APR 24 2007”

“Doherty J.A.”

“S. Borins J.A.”

“I agree K. Feldman J.A.”