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

95 O.R. (3d) 469

Court of Appeal for Ontario,

Goudge, MacFarland and Watt JJ.A.

March 18, 2009

Criminal law -- Disclosure -- Third-party records -- Accused intending to argue at his trial on charge of attempted murder that R shot victim -- R deceased at time of trial -- Defence seeking production of police records relating to R, particularly pertaining to the investigation of R's murder -- Those records not concerning investigation of charge against accused but defence arguing that R's background was relevant and necessary to make full answer and defence -- Trial judge properly dismissing application -- Bald assertion by defence counsel that he was in position to call evidence that R was shooter not establishing evidentiary foundation necessary to meet likely relevance threshold on O'Connor application.

Criminal law -- Sentencing -- Attempted murder -- Accused with lengthy and related criminal record receiving gross sentence of 12 years' imprisonment for attempted murder -- Offence planned in advance and involving shooting in public area -- Sentence affirmed on appeal.

The accused was charged with attempted murder. The defence position was that the actual shooter was R. By the time of the trial, R was dead. The defence brought an O'Connor application to obtain police records relating to R, particularly relating to the investigation of R's murder. Those files did not concern the investigation of the charge against the accused. Rather, the defence argued that R's background, including any propensity for violence, was relevant and necessary to make full answer and defence. The only affidavit in support of the application was based on information from defence counsel that he was in a position to call evidence that R was the shooter but counsel stated that he was not undertaking to call that evidence. The application was dismissed. The accused was convicted and was sentenced to 12 years' imprisonment, less a credit of three years for pre-trial custody. The accused appealed.

Held, the appeal should be dismissed.

The trial judge did not err in finding that, in the circumstances of this case, the bald assertion by defence counsel that he was in a position to call evidence that R was the shooter was insufficient to establish the evidentiary foundation necessary to meet the likely relevance threshold on an O'Connor application. There may be cases in which the submissions of counsel are all that the accused is able to present in relation to the threshold test of likely relevance for the production of the records because the accused will not have had access to the records before seeking their production. However, in this case, assuming that the records support the allegation that R had a propensity for violence, the records were said to provide a link between R and the commission of the offence. The fact that the accused didn't have access to R's records at the time of the application didn't adversely affect his ability to show that the records might be relevant to his defence, as the records sought did not relate to the offence for which he was being tried. Before R's alleged propensity towards violence could be relevant to the accused's trial, it had to be shown that there was a sufficient link between R and the offence. There was no evidence before the judge establishing such a link and the assertion [page470] by counsel that evidence existed to prove it was insufficient to demonstrate the relevance of the records.

This was a very serious shooting, planned in advance and committed in a public place by an individual with a lengthy and related criminal record. The accused acted in concert with others and used a prohibited weapon, a handgun, that has not been recovered, to shoot the victim twice. The sentence was not unfit.

APPEAL from the conviction entered on February 1, 2005 and from the sentence imposed on March 23, 2005 by DiTomaso J. of the Superior Court of Justice.

Cases referred to R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, [1994] S.C.J. No. 89, 178 N.R. 118, J.E. 95-459, 27 Alta. L.R. (3d) 1, 162 A.R. 272, 96 C.C.C. (3d) 225, 36 C.R. (4th) 201, 26 C.R.R. (2d) 189, 26 W.C.B. (2d) 197; R. v. Grandinetti, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3, 2005 SCC 5, 247 D.L.R. (4th) 385, 329 N.R. 28, [2005] 4 W.W.R. 405, J.E. 2005-265, 37 Alta. L.R. (4th) 197, 363 A.R. 1, 191 C.C.C. (3d) 449, 25 C.R. (6th) 1, 57 M.V.R. (5th) 1, 63 W.C.B. (2d) 237; R. v. McNeil, [2009] S.C.J. No. 3, 2009 SCC 3, 246 O.A.C. 154, 238 C.C.C. (3d) 353, EYB 2009-153175, J.E. 2009-174, 301 D.L.R. (4th) 1, 383 N.R. 1, 62 C.R. (6th) 1; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210; R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, 136 D.L.R. (3d) 89, 41 N.R. 606, [1983] 1 W.W.R. 193, J.E. 82-563, 67 C.C.C. (2d) 1, 27 C.R. (3d) 304, 7 W.C.B. 477

Brian Snell, for appellant. Elise Nakelsky, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.: -- On February 1, 2005, the appellant was convicted of attempted murder by Justice DiTomaso sitting alone. He was subsequently sentenced to 12 years in prison, less three years' credit for pre-trial custody. He appeals both his conviction and his sentence.

[2] He has raised two issues on the conviction appeal: first that the trial judge erred in dismissing his O'Connor application for production of certain police records relating to a Mr. Eion Rush, who was alleged by the appellant to be the real perpetrator; and second, that the trial judge erred in relying on prior consistent statements by the victim to corroborate his testimony at trial.

[3] In my view, neither argument can succeed, as I will explain. Similarly, I would dismiss the sentence appeal. [page471]

The O'Connor Application Issue

[4] On November 10, 2002, Martin Opoka was shot twice and was seriously injured in the parking lot of a plaza in Markham, Ontario. His evidence was that the appellant, with whom he had been friends for ten years, telephoned him to arrange to meet at the plaza. When Opoka arrived, the appellant got into his car, pointed a gun at him and said that he was going to kill him. As Opoka began to flee, he was shot in the back by the appellant. Two other men, both unknown to Opaka, tried to cut him off, but he escaped.

[5] The defence position was that the appellant and two other men had met in the plaza to consummate a drug deal and that one of the two purchasers, Eion Rush, was the actual shooter. By the time of the trial, Rush was deceased, having been murdered in February 2004.

[6] The defence brought an O'Connor application to obtain the Peel Regional Police files and the Toronto Police Service files relating to Rush, particularly the investigation of his murder. These files did not concern the investigation of the charge against the appellant. Rather, the defence argued that Rush's background, including any propensity for violence, was relevant and necessary to make full answer and defence.

[7] The only affidavit in support of the application was based on information from defence counsel that counsel was in a position to call evidence that Rush was the shooter. In arguing the application, counsel made the same submission. He acknowledged that there was no affidavit evidence saying that Rush was the shooter, or even that he was at the plaza that night. However, he argued that his own submission that he was in a position to call evidence that Rush was the shooter was enough, although he was careful not to undertake to call that evidence. Counsel argued that his submission about the evidence he was able to call meant that any information in the files sought that shows Rush's propensity for violence met the "likely relevant" threshold required in an O'Connor application.

[8] In response, the Crown argued that the bald assertion by counsel that Rush was the shooter was not an adequate evidentiary foundation to meet the likely relevance test.

[9] The trial judge dismissed the application. He found that no sufficient evidentiary basis had been established that there existed a nexus between Rush, the victim and the commission of the offence. He held that the submission by defence counsel amounted to no more than a bald assertion and was insufficient to establish the evidentiary foundation necessary to meet [page472] the likely relevance threshold that must be established in an O'Connor application.

[10] In my opinion, the ruling of the trial judge was correct.

[11] The appellant properly proceeded with an O'Connor application as the way to seek production of the police files. These were not files relating to the appellant's case, nor were they in the possession or control of the prosecuting Crown, and do not therefore fall to be dealt with pursuant to the principles set out in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83 (see R. v. McNeil, [2009] S.C.J. No. 3, 2009 SCC 3).

[12] The first stage in an O'Connor application requires the applicant to show that the records sought are likely to be relevant in his or her trial. The appellant forcefully reminded the court that the burden is not onerous, as the majority made clear in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98. In that case, the majority said that although not onerous, the burden is nonetheless significant, "to prevent the defence from engaging in 'speculative, fanciful disruptive, unmeritorious, obstructive and time-consuming' requests for production" (O'Connor, at para. 24, quoting from R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, [1994] S.C.J. No. 89, at para. 32).

[13] The real debate here is whether the oral submission of counsel is enough to demonstrate the likely relevance of the records sought.

[14] The appellant argues that the records, given their nature, likely show Rush's propensity for violence, and when this is coupled with counsel's submission that he is in a position to call evidence that Rush was the shooter and therefore at the scene, the files meet the likely relevance test. The appellant relies particularly on the following passage from O'Connor, at para. 19:

The onus we place on the accused should not be interpreted as an evidential burden requiring evidence and a voir dire in every case. It is simply an initial threshold to provide a basis for production which can be satisfied by oral submissions of counsel. It is important to recognize that the accused will be in a very poor position to call evidence given that he has never had access to the records. Viva voce evidence and a voir dire may, however, be required in situations in which the presiding judge cannot resolve the matter on the basis of the submissions of counsel.

[15] This passage clearly cannot be taken to mean that the accused can always satisfy the likely relevance requirement by means of the oral submissions of counsel.

[16] There may, however, be cases where that can happen. The majority's emphasis in this passage on the very poor position an accused will be in to call evidence, never having seen the [page473] records, suggests one example: since the accused has never had access to the records, oral submissions about their likely contents may be enough in some circumstances to meet the O'Connor threshold.

[17] In this case, counsel's oral submissions are not about the likely contents of the record sought. Rather, they are put forward to provide the nexus between Rush and the commission of the offence that is necessary to make the records relevant to the appellant's trial, assuming that those records will demonstrate Rush's propensity for violence. The appellant's ability to show this nexus is not adversely affected by having no access to the records sought, since the records do not relate to this offence.

[18] There can be cases where the oral submissions of counsel alone will be enough to meet the likely relevance threshold, even if those submissions do not address the likely contents of the records sought. However, I agree with the trial judge that this case is not one of them.

[19] Assuming that the records demonstrate Rush's propensity for violence, they become relevant in the appellant's trial only if there is a sufficient connection between Rush and the crime (see R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3, at para. 27).

[20] Here there is no affidavit evidence offered to supply that connection. There is nothing other than counsel's submission that he was in a position to call evidence that Rush was the shooter. The Crown was not content with this, but viewed the submission as simply a bald assertion amounting to nothing more than speculation.

[21] In these circumstances, it would have been quite proper for the trial judge to require the accused to lay a better foundation demonstrating a sufficient connection between Rush and the crime before permitting him to put the records in evidence, even if he had possessed them and assuming they were otherwise admissible to prove propensity. In that sense, what faced the trial judge was really a trial management issue that he could quite properly resolve as he did. Viewed in the context of this O'Connor application, it was equally proper for him to find that the oral submissions of counsel were not enough to make the records likely relevant in the appellant's trial. I agree with his conclusion. This ground of appeal fails. [page474]

The Prior Consistent Statement Issue

[22] The evidence was that Opoka initially lied to police officers about who shot him. However, some 48 hours later, after speaking with his parents, Opoka identified the appellant to the police as the shooter and has consistently maintained that position since then. In argument, the Crown urged that Opoka ought to be believed in part, because he repeatedly identified the appellant as his assailant.

[23] In his reasons for judgment, the trial judge recited both this evidence and the Crown's argument based on it. From this, the appellant argues that the trial judge erred in using Opoka's prior consistent statements to corroborate his trial testimony.

[24] I do not agree. The trial judge recited the evidence only as part of the narrative and referred to the Crown's argument only in describing the Crown's position. When he came to assess Opoka's credibility, he did so very carefully. He gave himself a clear warning in accordance with R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40 and treated Opoka as an unsavoury witness. He exercised great caution in adopting Opoka's evidence without confirmatory evidence. He rejected various aspects of his evidence. However, he accepted Opoka's evidence identifying the appellant as the shooter and clearly set out his reasons for doing so. They made clear that the trial judge did not rely in any measure on Opoka's prior consistent statements identifying the appellant as the shooter to bolster his evidence at trial to the same effect.

[25] This ground of appeal must fail. The conviction appeal is dismissed.

The Sentence Appeal

[26] We did not call on the Crown on this issue. This was a very serious shooting, with a handgun, planned in advance and committed in a public place by an individual with a lengthy criminal record, including convictions for acts of significant violence. There is no reason to interfere with the sentence imposed.

[27] Leave is granted but the sentence appeal is dismissed.

Appeal dismissed.