COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Provincial Police) v. Mosher, 2015 ONCA 722

DATE: 20151028

DOCKET: C58750

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

The Commissioner of the Ontario Provincial Police

Respondent

and

Thunder Bay Police Service

Respondent

and

Her Majesty the Queen Public Prosecution Service of Canada

Respondent

and

Brandie Mosher, Zahed Khan, Justin Cain, Neil Thompson and Rashad Waquad

Appellants

Michael A. Moon, Nicole Rozier and Kathy Perchenok, for the appellants

Holly Walbourne, for the respondent Thunder Bay Police Service

Christopher Diana, for the respondent Commissioner of the Ontario Provincial Police

Nick Devlin and Sabrina Montefiore, for the respondent Public Prosecution Service of Canada

Heard: March 11, 2015

On appeal from the judgment of Justice John S. Fregeau of the Superior Court of Justice, dated April 8, 2014, granting certiorari setting aside the order of Justice Frank Valente of the Ontario Court of Justice, dated November 12, 2013, issuing subpoenas duces tecum to certain witnesses.

Watt J.A.:

[1] Confidential informants and drug investigators are trading partners. Information for anonymity. And anonymity for information. Unless, of course, disclosure is necessary to demonstrate the innocence of an accused.

[2] In line with this arrangement, Ontario police forces and police services boards are required to establish procedures and processes in respect of informants and agents.

[3] Several persons charged with a variety of drug and criminal organization offences wanted to find out whether the police forces who arrested them followed these procedures and processes during their lengthy investigation.

[4] The request for information began with the prosecutor. It failed. The prosecutor said that what they sought was irrelevant and privileged and besides, the prosecutor did not have the information those charged requested.

[5] So the persons charged applied ex parte to a justice of the peace. They asked the justice of the peace to issue a subpoena duces tecum to the person in charge of each investigating police force. Under the subpoena each person in charge would be required to bring the information sought to court on the return date of the subpoena. The justice of the peace declined to issue the subpoenas, deferring to the authority of the judge presiding at the preliminary inquiry into the charges that was well under way.

[6] The preliminary inquiry judge issued the subpoenas. The officers in charge were required to appear at the preliminary inquiry and to bring with them the information requested. The judge would permit submissions by any interested party on the return date including submissions about privilege.

[7] Two police forces affected by the issuance of the subpoenas applied to a judge of the Superior Court of Justice to quash the subpoenas. Their application succeeded.

[8] The prosecution in which these proceedings arose has ended. Each of the persons charged has pleaded guilty. Each has been sentenced for his or her involvement. It follows that this appeal is moot.

[9] These reasons explain why I consider this to be an appeal we should decide despite its mootness and why I would dismiss it.

THE BACKGROUND

[10] The nature of the issues raised renders unnecessary any discussion of the circumstances of the offences charged or the evidence collected by the Crown to prove those offences. A brief reference to the procedural history of the prosecution will suffice. More detail will be provided as required in analyzing each ground of appeal.

The Offences Charged

[11] Brandie Mosher, Zahed Khan, Justin Cain and Rashad Khan (“the persons charged”) were charged with several counts of conspiracy to traffic in oxycodone and cocaine, as well as various criminal organization offences. They elected trial in the Superior Court of Justice and opted to have a preliminary inquiry.

[12] A lengthy investigation preceded the charges. The investigative procedures used to gather evidence included the authorized interception of private communications. The supportive affidavits relied on information supplied by confidential informants.

The Disclosure Request

[13] Although they claimed no interest in any information that identified or tended to identify any confidential informant, counsel for the persons charged sought disclosure of what they described as “informant directives and/or police procedures” from the officers in charge of two investigating police forces: the Thunder Bay Police Service (“TBPS”) and the Ontario Provincial Police (“OPP”). They sought this information so that they could pursue a Dawson[^1] application at the preliminary inquiry and later an application to cross-examine the affiants and sub-affiants to advance a Garofoli[^2] application at trial.

[14] The persons charged sought disclosure of the information from the prosecutor. The prosecutor rejected the request on the bases that the requested materials were in the custody of the police forces and were at once irrelevant and privileged.

The Subpoena Request

[15] The persons charged then adopted a different course. They applied ex parte to a justice of the peace for subpoenas duces tecum. The subpoenas would require the officer in charge of each of the TBPS and OPP to attend the preliminary inquiry and to bring with him the materials counsel sought.

[16] The justice of the peace refused to issue the subpoenas. He reasoned that to do so would encroach upon the jurisdiction of the judge presiding over the then ongoing preliminary inquiry.

The Second Subpoena Request

[17] The preliminary inquiry continued. Counsel for the persons charged reinvigorated their request for subpoenas. The affected police forces were not represented. The prosecutor was present.

[18] The preliminary inquiry judge issued the subpoenas, which required the attendance of the officers in charge with the requested documents three days later. The judge made it clear that on the return of the subpoenas he would entertain submissions by counsel “relative to the manner in which the subpoenaed materials [were] to be received pending a determination of any claim of privilege that [might] be advanced in relation to these materials”.

The Reasons of the Preliminary Inquiry Judge

[19] The preliminary inquiry judge pointed out that the persons charged were not seeking information relating to the specific informants involved in the investigation, but only the policy directives and/or protocols that investigators were required to follow in dealing with informants. The judge also noted that the prosecutor did not challenge his (the judge’s) jurisdiction to issue the subpoenas.

[20] The preliminary inquiry judge was satisfied that, during the investigation, confidential informants had provided information to the police that was used to obtain Part VI authorizations and production orders. The judge concluded that the materials sought would be relevant to a Dawson application and to the purposes of the preliminary inquiry. He noted that, given the disclosure difficulties that had occurred, he would have exercised his discretion to issue the subpoenas even in the absence of any Dawson or Dawson-type application.

[21] It does not appear to have been suggested to the preliminary inquiry judge that the materials sought were third party records that required adherence to the regime put in place by R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.

The Motion to Quash

[22] The affected police forces applied to a judge of the Superior Court of Justice (“the motion judge”) to quash the subpoenas. Each alleged jurisdictional error, allegations which will be outlined later in these reasons.

The Decision of the Motion Judge

[23] The motion judge quashed the subpoenas. He pointed out that production of the documents had first been sought by a disclosure request of the prosecutor. When that failed, the persons charged took another route – the subpoena duces tecum – to get the same relief. When the preliminary inquiry judge entertained the application, the motion judge reasoned, he effectively heard a disclosure application that was reserved for the trial judge and beyond the jurisdiction of the preliminary inquiry judge. The issuance of the subpoenas was, in effect, a production order and equally beyond the authority of the preliminary inquiry judge.

The Subsequent Proceedings

[24] Sometime after the order of the motion judge quashing the subpoenas, the persons charged resolved their charges by guilty pleas. As a result, the issue of their guilt of the offences charged has been resolved. The prosecution has ended.

THE GROUNDS OF APPEAL

[25] Setting to one side the issue of mootness, the (now) appellants allege that the motion judge erred in three respects:

i. in violating the principle of audi alteram partem by deciding the motion on a ground not argued by counsel;

ii. in equating the issuance of subpoenas duces tecum with a disclosure order; and

iii. in requiring an O’Connor application to the trial judge for records that could not possibly engage a privacy interest.

A Threshold Issue: Mootness

[26] A threshold issue arises because the proceedings in which the appellants sought to use the documents, their preliminary inquiry and trial, no longer exist. The appellants have pleaded guilty and have been sentenced for their involvement in the offences charged.

[27] The TBPS has raised the issue of mootness and invites dismissal on that ground. The appellants and other respondents acknowledge that the appeal is moot but expressly or impliedly suggest that it should be decided because of the importance of the issues raised and the absence of binding precedent on the subject.

The Governing Principles

[28] The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises a hypothetical or abstract question. This general principle applies when a court’s decision will not, in effect, resolve some controversy that affects or may affect the rights of the parties. As a general rule, courts decline to decide cases in which their decision will have no practical effect on the parties. This essential element – a lis inter partes – must exist not only when the proceeding commences, but also when the court is assigned the task of deciding it: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, 260 O.A.C. 125, at para. 35.

[29] The doctrine of mootness is of general, but not unyielding, application. Sometimes it gives way: a court has and may exercise a discretion to depart from the doctrine: Borowski, at p. 353; Mental Health Centre, at para. 36.

[30] The approach taken by a court confronted with a claim of mootness involves two steps. The first step requires a determination whether the essential tangible and concrete dispute – the lis inter partes – has disappeared and the issues have become academic. If the response at this first step is affirmative, the second step requires the court to decide whether it should exercise its discretion to hear the case: Borowski, at p. 353; Mental Health Centre, at para. 36.

[31] The formulation of guidelines for the exercise of discretion in departing from the usual practice is informed by an examination of the rationalia underlying that practice. To the extent that a particular foundation for the practice is either absent or its presence tenuous, the reasons for adherence to the practice disappear or diminish. An examination of the authorities does not yield a neat set of criteria: Borowski, at p. 358.

[32] Three basic rationalia underpin the mootness doctrine:

i. that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii. the concern for judicial economy; and

iii. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.

[33] The first rationale may be satisfied where the live controversy has ceased but the essential adversarial relationship nevertheless prevails. Collateral consequences may provide the necessary adversarial context: Borowski, at pp. 358-9.

[34] The second rationale – the concern for judicial economy – may be met in cases which are at once moot but of a recurring nature and brief duration. A flexible application of the mootness doctrine ensures that important questions, which might independently evade review, are heard and decided by the court: Borowski, at p. 360.

[35] A somewhat more amorphous basis to justify the deployment of limited judicial resources arises in cases that involve issues of public importance of which a resolution is in the public interest. The economies of judicial involvement are balanced against the social cost of continued legal uncertainty: Borowski, at p. 361.

[36] In exercising its discretion to hear and determine an appeal that is moot, a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present. The process is not mechanical. The principles may point in opposite directions. The absence of a third may overbear the presence of one or two. And vice versa: Borowski, at p. 363.

The Principles Applied

[37] In my respectful view, this appeal is moot for want of a live controversy or concrete dispute. The substratum of this appeal has vanished, as I will briefly explain.

[38] The lis inter partes arose in the context of the prosecution of the several appellants for a fistful of drug and criminal organization offences. To be more specific, the controversy emerged at the preliminary inquiry because the appellants sought disclosure or production of copies of “any and all policy directives and/or protocols related to the documenting and tracking of confidential informants and agents” of investigating police forces. They sought these documents at the preliminary inquiry to advance a Dawson application there and to prepare the ground for a Garofoli application, including an application to cross-examine the affiant, at trial.

[39] In the usual course, an accused who seeks such disclosure or production would bring a disclosure application under Stinchcombe[^3] or O’Connor. But here the appellants were before a judge who lacked Stinchcombe and O’Connor authority. So they sought and obtained subpoenas duces tecum in the hope that they would obtain the equivalent result – disclosure or production – at the preliminary inquiry. They obtained the subpoenas, but the motion judge quashed them for reasons described earlier.

[40] On the hearing of the appeal, however, the preliminary inquiry was no longer ongoing. It had concluded and along with it the purposes for which the documents were sought. Nor were trial proceedings outstanding or ongoing. No trial occurred. The appellants gave up their right to a trial and to challenge the admissibility and sufficiency of the Crown’s proof by pleading guilty. No Garofoli application would be pursued.

[41] Even if the appellants were to succeed on appeal, restoration of the subpoenas duces tecum would have no practical effect for want of any extant preliminary inquiry at which the witness would be required to appear with the documents. And so it is that the appeal is moot.

[42] For several reasons, however, I would exercise our discretion to decide the issues raised in this appeal despite their mootness.

[43] First, the issues raised in this appeal are not unique to these appellants or to the police services whose documents are sought. Although not of everyday frequency, they are apt to arise in cases in which the Crown tenders evidence of private communications intercepted under an authorization that has been granted at least in part based on information provided by confidential informants. The same could be said where the Crown tenders evidence obtained on the execution of a search warrant issued based on an information to obtain (“ITO”) containing information from a confidential informant.

[44] Second, the issues raised in this appeal remain alive only briefly at a preliminary inquiry. As a result, they are elusive of appellate review, in part at least because Crown counsel has the authority to terminate the inquiry and invoke s. 577(a) of the Criminal Code, R.S.C., 1985, c. C-46, to indict the persons charged directly in the superior court of criminal jurisdiction.

[45] Third, we are concerned here with a procedural issue of some importance. It is a matter of first impression in an appellate court. Accepting as we must that a preliminary inquiry judge has no authority to make a disclosure order under either Stinchcombe or O’Connor, can an accused invoke the authority of the presiding judge to issue a subpoena duces tecum as a means to obtain at least partial disclosure?

[46] Fourth, while it may seem inimical to judicial economy to determine this, or any, moot appeal, the expenditure involved may yield dividends in the future by ensuring that preliminary inquiries are not interrupted needlessly to pursue unavailable remedies.

[47] Fifth, the appeal was fully argued by all interested parties based on a complete record.

[48] For these reasons, I would exercise our discretion to determine the issues raised despite the absence of a lis inter partes.

Ground #1: Failure to Follow the Audi Alteram Partem Principle

[49] The first ground of appeal asserts a violation of the principle of audi alteram partem because the motion judge, the appellants contend, quashed the subpoenas on a ground that had not been advanced in argument by either affected police force on the hearing of the motion.

[50] A brief reference to the proceedings in which the subpoenas were issued and later quashed is essential to an understanding and determination of this ground.

The Issuance of the Subpoenas Duces Tecum

[51] The appellants’ first request for subpoenas duces tecum was rejected by the justice of the peace to whom it was made. Typically, the persons whose attendance was sought and the prosecutor are not notified of the application.

[52] The second request for subpoenas duces tecum was to the judge presiding at the preliminary inquiry. Formal notice of the application was not provided to the affected police forces or to those whose attendance was sought. The prosecutor was present and participated in the hearing.

[53] On the return date of the subpoenas, counsel for the affected police forces attended and advised the preliminary inquiry judge that they considered the documents subject to public interest privilege.

The Motion to Quash the Subpoenas

[54] The affected police forces moved to quash the subpoenas before a judge of the Superior Court of Justice. They submitted that the preliminary inquiry judge committed jurisdictional error by:

i. failing to consider whether the materials sought were third party records and thus subject to the disclosure regime of O’Connor;

ii. issuing the subpoenas thereby assuming jurisdiction over third party records that was beyond the authority of a preliminary inquiry judge; and

iii. issuing subpoenas to compel production of documents that could only be ordered produced by the trial judge.

The Decision of the Motion Judge

[55] The motion judge recited the procedural history of the applications for the subpoenas and found it unnecessary to decide whether the information requested was subject to the first party disclosure regime of Stinchcombe or the third party protocol of O’Connor. The motion judge concluded that the issuance of the subpoenas duces tecum was, in effect, a production order for documents in the possession of a third party. Such an order, the judge reasoned, was beyond the jurisdiction of a preliminary inquiry judge, rather fell within the exclusive authority of a judge presiding or designated to preside at the appellants’ trial.

The Arguments on Appeal

[56] The appellants say that the audi alteram partem principle requires that a party to a proceeding have notice of a hearing and a full opportunity to be heard by the decider on issues that will form the basis of the decision. The principle was offended here because the respondents applied for relief solely on the basis that the subpoenas encroached on O’Connor territory and thus were beyond the jurisdiction of the preliminary inquiry judge. At the preliminary inquiry, the prosecutor conceded that the preliminary inquiry judge had jurisdiction to issue the subpoenas. The order of the motion judge should be set aside on this ground alone and the issue considered afresh here.

[57] The respondent TBPS submits that the audi alteram partem principle was not offended in this case. The relief sought before the motion judge was not grounded exclusively on an infringement or encroachment on O’Connor turf. The contention of the police forces and the prosecutor was that what was sought – production of informant procedure – was obtainable only by a disclosure application to the trial judge, not by a subpoena issued by the presiding judge at the preliminary inquiry. In every event, the basis upon which the motion judge decided the issue could have been easily anticipated by the appellants. Any tacit acknowledgement of jurisdiction in the preliminary inquiry judge is unavailing since consent cannot confer jurisdiction.

[58] The respondent OPP acknowledges that it did not raise the issue of the jurisdiction of the preliminary inquiry judge to hear a general disclosure application. That said, the prosecutor did contest the preliminary inquiry judge’s jurisdiction to order de facto disclosure. It follows, according to the OPP, that the appellants were well aware of the issue of jurisdiction and had ample opportunity to respond to it.

[59] The respondent Crown made no specific submissions on this issue but characterized the core question as whether a preliminary inquiry judge can issue a subpoena duces tecum to secure production of documents that are the subject of a disclosure or production dispute.

The Governing Principles

[60] Two brief points about the audi alteram partem principle are adequate to mark out the boundaries of the principle.

[61] The principle is an amalgam of two components. Each is a right accorded to a party in a proceeding.

[62] First, a right of audience. Said in another way, the right to be heard by the decision-maker. This right compels the decision-maker to allow the party to be heard so that the party has the opportunity to present his or her point of view: Supermarchés Jean Labrecque Inc. v. Flamand, 1987 CanLII 19 (SCC), [1987] 2 S.C.R. 219, at pp. 234-35.

[63] Second, and this arises out of the right to be heard, notice of the hearing sufficient in time and substance to enable the party to present his or her case on the issues to be decided: Telecommunications Workers Union v. Canada (Radio-Television and Telecommunications Commission), 1995 CanLII 102 (SCC), [1995] 2 S.C.R. 781, at para. 29; Supermarchés Jean Labrecque, at p. 235.

The Principles Applied

[64] For several reasons, I would reject this ground of appeal.

[65] First, the nature of the remedy sought before the motion judge. The respondents sought an extraordinary remedy – certiorari – which invokes the supervisory jurisdiction of the superior court to ensure that courts or judges whose jurisdiction is limited, by statute or otherwise, stay within that jurisdiction. The modern equivalent of the prerogative writ of certiorari – the motion to quash – quashes orders made or process issued in excess of the authority of the courts or judicial officers of limited jurisdiction. To put it in more general terms, the remedy sought by the respondents challenged the jurisdiction of the preliminary inquiry judge to issue the subpoenas. Whether the preliminary inquiry judge remained within or strayed outside the limits of his jurisdiction was at the forefront of the proceedings before the motion judge.

[66] Second, the notice of application, the materials filed in support and the submissions made at the hearing put the appellants on notice that the prosecutor and the affected police forces considered the materials sought third party records. The sole means of gaining access to those materials, the police and prosecutor argued, was an O’Connor application. If this argument carried the day before the motion judge, it necessarily followed that the subpoenas had been issued without jurisdiction and could not have achieved the production or disclosure sought.

[67] Third, the application to the preliminary inquiry judge for subpoenas duces tecum was made without notice to the police forces whose directives were sought. It scarcely surprises that the forces raised no jurisdictional issue at first instance. Even if the prosecutor did not contest jurisdiction at the preliminary inquiry, acquiescence does not confer jurisdiction through waiver of a condition that cannot be waived: Township of Cornwall v. Ottawa and New York Railway Co. et al (1916), 1916 CanLII 614 (SCC), 52 S.C.R. 466, at pp. 496-7.

[68] In the end, I am satisfied that the basis on which the motion judge decided to quash the subpoenas did not offend the audi alteram partem principle.

Ground #2: Alleged Error in Finding Issuance of Subpoenas the Functional Equivalent of a Disclosure Order

[69] The second error alleged takes aim at the motion judge’s conclusion that, in the circumstances of this case, the issuance of the subpoenas was the functional equivalent of a disclosure order that was beyond the jurisdiction of the preliminary inquiry judge to make.

[70] A brief reference to the basis on which the subpoenas were sought and later quashed furnishes the background essential for a determination of this issue.

The Decision of the Preliminary Inquiry Judge

[71] The appellants first sought the materials from the prosecutor asserting that they were properly disclosable. The prosecutor refused disclosure.

[72] Before the preliminary inquiry judge, the appellants advanced their claim for the issuance of the subpoenas on the ground that the materials were necessary for them to pursue a Dawson application at the preliminary inquiry and a Garofoli application at trial. At the preliminary inquiry, a police witness had testified that policy guidelines for handling confidential informants did exist and had been applied in connection with the informants who had provided investigators with information in this case.

[73] The preliminary inquiry judge considered his authority to issue subpoenas to be incontrovertible. Mindful of the requirement that he be satisfied the witnesses to be subpoenaed had material evidence to give, he concluded:

[I]n my view, the policy manuals or guidelines would be “likely” material given that in my view, it or they, would be relevant to any such Dawson application or Dawson type applications and in my view, would also be relevant to the purposes of the preliminary inquiry -- if not to the primary purpose, (committal or discharge) -- at the very least to the secondary or ancillary function of the inquiry.

He added:

I would have exercised in my discretion and jurisdiction to allow the instant application even in the absence of any Dawson application or any Dawson type application, proposed though those applications may remain at this juncture. A fortiori because of those applications. In my view, the policy manuals or guidelines would be relevant and material to the course of this preliminary inquiry as those terms are referred to and applied in the cases to which I have already made reference.

The Decision of the Motion Judge

[74] The motion judge described the background in which the preliminary inquiry judge made his decision. The preliminary inquiry judge knew:

i. that every police force, including the TBPS and the OPP, was required by provincial regulation to have guidelines for handling confidential informants;

ii. that counsel for the appellants had sought these guidelines as first party (Stinchcombe) disclosure from the prosecutor in advance of the preliminary inquiry; and

iii. that the prosecutor had refused disclosure on the grounds that the materials were not in the possession of the Crown, but rather in the custody of the police, and were irrelevant and protected by confidential informant privilege.

[75] The motion judge was satisfied that the documents were material. Three brief paragraphs of his reasons reflect the essence of his decision to quash the subpoenas:

[49] While production of the subject documents would no doubt be useful to the defence for the purposes of the preliminary inquiry, they are not in a position to compel their production at this stage. The respondents are entitled to bring a Stinchcombe/McNeil [sic]application and/or an O’Connor application for production of this material, the latter being on notice to the record holders. This will allow the applicants a hearing on the issue of the status of the records and whether or not they should be produced. These applications must be brought before the trial judge.

[50] This issue was not put before Valente J. nor could it have been on the preliminary inquiry. Valente J. was sensitive to the issue of public interest privilege because it was raised before him on November 15, 2013, when the respondents appeared at the preliminary inquiry with the subpoenaed documents. Valente J. invited submissions “…from any interested party…” on the issue of privilege and as to the “…manner in which the subpoenaed materials are to be received by the court…”

[51] The position taken by Valente J. on November 15, 2013 does not, however, alter the fact that he had, while sitting as a preliminary inquiry justice, effectively ordered the production of documents the Crown had declined to disclose and/or which were not in the Crown’s possession. I therefore find that he exceeded his jurisdiction by issuing the subpoenas in the first instance on November 12, 2013.

The Arguments on Appeal

[76] The appellants begin with the uncontroversial. The preliminary inquiry judge had jurisdiction to issue subpoenas, including subpoenas duces tecum, provided he was satisfied that the witness to whom the subpoena was to be issued had material evidence to give at the inquiry.

[77] The appellants say that the motion judge erred by focusing on the prosecutor’s refusal to provide disclosure, rather than on the fact that the materials were not in the Crown’s possession for disclosure purposes. Counsel for the appellants had a positive obligation to secure evidence and information not in the possession or control of the Crown that they considered relevant and material to the defence case. The motion judge erred in finding that the prosecutor’s refusal to disclose materials, which he did not have, estopped defence counsel from exercising their own due diligence to secure the materials. The means chosen were legally available and an appropriate method to do so.

[78] The respondent OPP contends that the motion judge did not err in concluding that, in the circumstances of this case, issuance of the subpoenas was the functional equivalent of a disclosure order. As a statutory court with only statutory authority, a preliminary inquiry judge lacks any inherent jurisdiction to make a disclosure order and is foreclosed by binding authority from doing so. In this case, the subpoena required the production of documents and thus amounted to a disclosure order, a direction beyond the jurisdiction of a preliminary inquiry judge to give.

[79] The respondent TBPS does not challenge the general authority of a preliminary inquiry judge to issue a subpoena duces tecum. But a problem arises, the TBPS says, when the subpoena compels the disclosure of third party records. The Criminal Code assigns to the preliminary inquiry judge the responsibility of deciding whether the evidence adduced at the inquiry is sufficient to justify the committal of the persons charged. The scope of the inquiry is statutorily prescribed and confined. It does not authorize inquiry into other issues or permit the presiding judge to order production of documents not related to the committal mandate and with no conceivable bearing on that issue.

[80] The respondent TBPS says that even if a preliminary inquiry judge has authority to issue subpoenas duces tecum to require a witness to attend with documents, the judge has no authority to compel the witness to turn the document over once a privacy or other interest is asserted. When this occurs, the party who seeks the document must follow the scheme put in place by O’Connor to obtain disclosure, a procedure that cannot be invoked at the preliminary inquiry.

[81] The respondent Crown characterizes the dispute as a classic wrangle about disclosure. It is not a controversy about what materials a testifying witness can be compelled to produce. The squabble involves third party records, that is to say, records not in the possession or control of the Crown or part of the case to meet, and their production to the persons charged.

[82] The respondent Crown points out that the purpose of a subpoena duces tecum is to compel a witness to bring listed documents to court with him or her. The subpoena gets the documents to court, but does not automatically entitle an opposite party to disclosure or possession of the documents. Production – the act of giving or providing a document to another – falls to be decided under the O’Connor regime. The subpoena cannot serve as a functional equivalent or surrogate for a disclosure order made under O’Connor.

The Governing Principles

[83] This ground of appeal can be resolved by the application of general principles regarding the authority to issue subpoenas and the nature and extent of their reach.

[84] Under s. 698(1) of the Criminal Code, a competent authority may issue a subpoena to a person who is likely to give material evidence in a proceeding governed by the Criminal Code. The subpoena is directed to a named person and requires that person to attend, at a time and place stated in the subpoena, to give evidence for the prosecution or defence, as the case may be. The subpoena may be in Form 16.

[85] Under s. 700(1), a subpoena may also require the person to whom it is directed to bring with him or her anything that the person has in his or her possession or under his or her control relating to the subject-matter of the proceedings. Neither this form of subpoena – a subpoena duces tecum – nor the enabling authority in s. 700(1) of the Criminal Code say anything about what happens to or with the documents that accompany the witness. Not about access. Or copying. Or production to the court. Or to any party.

[86] The issuing authority for subpoenas depends upon the court before which the witness will be directed to attend. A preliminary inquiry, a proceeding over which a “justice” has jurisdiction, is governed by s. 699(2)(a) of the Criminal Code. The issuing authority may be either a justice or a provincial court judge where, as here, the witness is within the province in which the proceedings have been instituted.

[87] Section 699(2)(a) does not expressly require that the issuing justice be the justice who is presiding at the preliminary inquiry. Nor does any such requirement arise by necessary implication from the language used in s. 699(2)(a). Where the issuing authority is the justice presiding at the preliminary inquiry, however, he or she issues the process qua justice, not as the judge (or justice) presiding at the preliminary inquiry: R. v. Regan (1997), 1997 CanLII 9853 (NS CA), 113 C.C.C. (3d) 237 (N.S.C.A.), leave to appeal refused [1997] S.C.C.A. No. 129, at pp. 243, 252.

[88] A subpoena duces tecum requires the person to whom it is issued to attend court at a time and place specified to give evidence for a party and to bring anything in his or her control relating to the subject-matter of the proceedings to court.

[89] A subpoena duces tecum does not, in terms, require the witness to produce to either party what the witness has brought in compliance with the subpoena: O’Connor, at paras. 103, 185. We see this distinction reflected in the kinds of subpoena, the statutory procedure for third party records and the rejection of the subpoena as a production device in R. v. French (1977), 1977 CanLII 2117 (ON CA), 37 C.C.C. (2d) 201 (Ont. C.A.), aff’d 1979 CanLII 49 (SCC), [1980] 1 S.C.R. 158, at pp. 213-14.

The Principles Applied

[90] The motion judge erred to the extent that he characterized the subpoena duces tecum as the functional equivalent of a production order.

[91] A subpoena duces tecum compels the appearance of the person to whom the subpoena has been issued at the inquiry and requires that person to bring with him or her “anything that he has in his possession or under his control relating to the subject-matter of the proceedings”.

[92] Thus the issuance of a subpoena duces tecum is not an order for production or disclosure of the documents the witness is required to bring on the return of the subpoena. Said differently, issue of a subpoena duces tecum without more is not a disclosure order or its functional equivalent.

[93] That said, this error is immaterial to the result of this appeal given the conclusion I reach regarding Ground #3.

Ground #3: O’Connor as the Appropriate Procedural Mechanism

[94] The final ground of appeal challenges the O’Connor procedure as the appropriate mechanism to obtain production or disclosure of the records the appellants seek.

[95] In earlier paragraphs I have canvassed the relevant circumstances that support this claim of error and excerpted the appropriate passages in the trial judge’s reasons that explain his conclusion. Repetition here is unnecessary.

The Arguments on Appeal

[96] The appellants acknowledge at the outset that they took the position before the motion judge that the affected police services were first parties and thus required to provide the requested materials to the prosecuting Crown for disclosure to the accused. The Crown was put on notice of the request but denied possession or control and did nothing to obtain the records and thus comply with its Stinchcombe disclosure obligations.

[97] On appeal, the appellants say that it is of no moment whether the records fall within first or third party disclosure obligations. The crux of the issue is whether production or disclosure can be achieved by service of a subpoena duces tecum. The O’Connor regime does not apply to these records because there is neither a reasonable expectation of privacy, or even an arguable claim of such an expectation attaching to them. Such an actual or arguable expectation of privacy is essential before the O’Connor/McNeil[^4] regime governs; witness the second stage of the O'Connor inquiry.

[98] Here, the appellants contend, the materials sought do not give rise to even an arguable expectation of privacy. The directives are quasi-legislative in nature. They are required by legislation. They govern all interactions between police forces and confidential informants. They are not created solely for this investigation. They do not contain any privileged materials; else they would breach the law enforcement obligation to ensure anonymity.

[99] The respondents uniformly reject the appellants’ submissions on this ground. However coloured, what the appellants sought was disclosure of third party records. A subpoena duces tecum, the procedural vehicle they chose, cannot achieve what they seek. And a preliminary inquiry judge is not the proper forum in which to seek disclosure.

[100] The respondent OPP says that the directives sought are not fruits of the investigation, not in the possession or control of the prosecuting Crown and thus not subject to the first party disclosure obligations of Stinchcombe. These directives, which are policies of general application not unique to the circumstances of this case, are third party records. An order for their disclosure must be sought from and can only be made by the trial judge.

[101] The respondent TBPS submits that the materials sought trench upon the privacy interest of the TBPS and thus are third party records disclosable only according to the O’Connor procedure. But in the end, the nature of the privacy interest asserted in the materials is of no moment – a preliminary inquiry justice has no authority to make an order for production under O’Connor.

[102] The respondent Crown says that O’Connor, together with McNeil, create a complete code for production of third party records. The procedure governs production of third party records, irrespective of a reasonable expectation of privacy in those records. The authority to order production resides in the exclusive jurisdiction of the trial judge or, in exceptional cases, in a judge of the superior court of criminal jurisdiction. A justice presiding at a preliminary inquiry is neither and thus cannot make a production order. Not directly. And not indirectly.

The Governing Principles

[103] In earlier paragraphs of these reasons I have surveyed the principles that describe the issuance and effect of a subpoena duces tecum. Repetition is unwarranted.

[104] It is useful, however, to outline the schemes governing the disclosure of information to a person charged with a criminal offence. Setting aside statutory schemes that authorize production of various kinds of records to certain persons (for example, in current ss. 487.014-487.018 or predecessor legislation) or when certain offences are charged or records sought (for example, ss. 278.1 and following), two such schemes exist.

[105] Disclosure of information in the possession or control of the prosecuting state agency, the fruits of the investigation, is governed by Stinchcombe. Disclosure of information or materials in the hands of a stranger to the litigation – a third party – is governed by the procedure mandated by O’Connor and amplified by McNeil.

[106] The effect of a disclosure order made under either regime is to get the subject-matter of the request into the hands of the person charged after resolution of any disputes about relevance and privilege.

[107] A justice presiding at a preliminary inquiry is a statutory court of limited jurisdiction. The authority of the justice is coextensive with that granted either expressly or by necessary implication by the Criminal Code: R. v. Doyle, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597, at p. 602; O’Connor, at para. 168; and R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.), at para. 21.

[108] The Criminal Code contains no provision that expressly authorizes a justice presiding at a preliminary inquiry to make a disclosure order. The primary function of the inquiry is to resolve the issue framed by s. 548(1) of the Criminal Code, that is to say, to determine whether the evidence adduced satisfies the standard for committal. A secondary or ancillary purpose of the inquiry is to afford the person charged an opportunity to discover and appreciate the case to be met: O’Connor, at para. 169; R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at pp. 105-6.

[109] In every event, it is clear that orders for disclosure under both the Stinchcombe and O’Connor regimes are to be made only by the trial judge or, in some cases, by a judge of the superior court of criminal jurisdiction: Girimonte, at paras. 18, 22; O’Connor, at paras. 173-8.

[110] The Stinchcombe or first party disclosure regime deals with information that is in the possession or control of the prosecuting authority. Information includes but is not limited to evidence, whether inculpatory or exculpatory, much less admissible evidence: R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, at para. 21.

[111] The O’Connor regime applies to records in the possession or control of third parties. As a general rule, these records are ones to which a reasonable expectation of privacy attaches: O’Connor, at paras. 36, 99. But the disclosure scheme is not premised on a reasonable expectation of privacy in the documents or records sought: McNeil, at para. 11.

[112] Nothing in the authorities, expressly or by necessary implication, excludes materials created by statutory requirement from an applicable disclosure regime. The origin and nature of the materials will determine the applicable scheme and, as a consequence, the procedure to be followed to obtain disclosure.

[113] Where the records are not part of the case to meet and are not in the possession or control of the prosecuting authority, the procedure to be followed to obtain disclosure is set out in paragraph 27 of the decision in McNeil. It begins with issuance of a subpoena duces tecum and its service on a third party record holder. The accused brings an application in writing and serves it on the prosecuting Crown, the person who is the subject of the records, the record holder and anyone else who may have a privacy interest in the record. The application is brought before the judge seized with the trial. It is that judge who will resolve any claims of privilege before undertaking the two stage test constructed by O’Connor: McNeil, at para. 27.

The Principles Applied

[114] I would reject this ground of appeal.

[115] First, as I explained, a subpoena duces tecum does two things. It compels the attendance of a person who has material evidence to give at a time and place specified. And it compels that person to bring with him or her anything that she or he has in his or her possession or under his or her control relating to the subject-matter of the proceedings. It does not require or authorize production of the documents to a party. The relevant inquiry for a justice requested to issue a subpoena duces tecum is whether the proposed witness has material evidence to give, not whether he or she can bring something that the party to the proceeding requesting the subpoena wishes to have disclosed or produced for their review.

[116] Second, here the irresistible inference is that the purpose of the subpoena duces tecum was not to obtain the testimony of the witness but to obtain disclosure of the specific documents each was requested to bring along. Thus the colourable use of the subpoena was for the remedy of production. This purpose appears the more obvious as the preliminary inquiry judge made it clear that he would permit the affected police forces to make submissions about privilege on the return of the subpoenas.

[117] The appellants, then, were, in effect, trying to do indirectly through a subpoena what they could not do directly through either of the Stinchcombe or O’Connor regimes. The jurisdiction to grant the remedy of production lies with the trial judge, not the preliminary inquiry justice. While the preliminary inquiry justice has the jurisdiction to issue subpoenas duces tecum, they cannot be used by parties as a tool for circumventing this established jurisdictional limit.

[118] Third, the appellants’ submission that the O’Connor regime could not apply due to a lack of a reasonable expectation of privacy in the directives is incorrect. As stated above, a reasonable expectation of privacy in the materials sought is not a condition precedent to the application of the O’Connor regime.

CONCLUSION

[119] For these reasons, I would determine the appeal on its merits despite its mootness and dismiss it as without merit.

Released: October 28, 2015 (DW)

“David Watt J.A.”

“I agree P. Lauwers J.A.”

“I agree C.W. Hourigan J.A.”

[^1]: R. v. Dawson (1998), 1998 CanLII 1010 (ON CA), 123 C.C.C. (3d) 385 (C.A.). A Dawson application seeks leave from the preliminary inquiry judge to permit cross-examination of a Part VI affiant or ITO informant to develop grounds to advance a s. 8 Charter challenge to the enabling authorization or warrant as a basis to exclude evidence of intercepted private communications or other evidence obtained under the enabling authority at trial.

[^2]: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. A Garofoli application seeks exclusion of intercepted private communications or other evidence tendered at trial because the enabling authorization or warrant under which the evidence was obtained failed to meet the standard required by s. 8 of the Charter.

[^3]: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[^4]: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.