Citation: R. v. K.(V.), 2012 ONCJ 29

ONTARIO COURT OF JUSTICE

311 Jarvis Street, Toronto M5B 1C4

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

V.K., a young person

Before Justice Heather Katarynych

Ruling on Disclosure of Police Occurrence Reports

Ms. Stacy Siopis ......................................................................................... for the Crown

Mr. Aman Patel .................................................................... counsel for the defendant

KATARYNYCH J.:

ISSUE AND CONTEXT

This particular decision is to be read in the context of this court’s written decision released January 3, 2012 dismissing the remaining claims in an O’Connor application brought by defence counsel in relation to certain 3rd party records held by Rogers Communications.

What is now before this court for adjudication is a further 3rd party records dispute that arose just before the intended close of the Crown’s case in this trial. Defence counsel desires access to certain Toronto Police Services occurrence reports before concluding his cross-examination of the complainant.

No formal O’Connor application was served on the Crown or any 3rd party named in the record, or filed in relation to this latest dispute.

I held open the possibility of waiving those procedural deficits if it emerged from the submissions from both counsel on the issue and the evidence upon which counsel was relying that such waiver would not visit prejudice on the 3rd parties.

In the end, it would have been unfair to waive the procedural requirements, but in light of the court’s decision the request, the issue of waiver is moot.

EVIDENCE

On the face of his submissions, the evidentiary base advanced by defence counsel for the grounding of his request centres on the testimony of the complainant’s husband given on June 3, 2011 and the complainant’s testimony of November 17 and 18, 2011.

What defence counsel asserts as the evidence is actually his characterization of the evidence of the complainant and her husband. My scrutiny was centred on the whole of the evidence of each of them.

He points out in particular that the complainant’s evidence is now before the court.

ON THE MERITS OF THE REQUEST

1. On the Timing of this Request

I address this first because it provides a context.

These particular records were brought to court under subpoena and in a sealed envelope on November 21, 2011. What had been subpoenaed were “all occurrence reports “relating to the telephone number (416) 508-7775), the named complainant, any complaint by the named complainant related to a robbery occurring prior to July 20, 2010, and the property municipally known as 80 McCaul Street, apartment 824, Toronto.

The record was duly identified on the record by the Toronto Police officer who had appeared for that purpose.

At that point in the trial, the complainant’s testimony had been completed but for any need for recall emanating from the court’s adjudication of remaining claims in an O’Connor application concerning undisclosed portions of Rogers’ Communications records. At that time, the court was awaiting written submissions from defence counsel and the complainant’s counsel on the disputed parts of that O’Connor application.

Defence counsel had made no mention to either the Crown or the Court that on November 15, 2011 he had subpoenaed the Toronto Police Service records for production on November 21, 2011.

In the court’s trial management discussion with counsel on the afternoon of Friday, November 18, 2011, attention was focused on what was expected to unfold on the Monday next, essentially to keep a pulse on movement of the already protracted trial to conclusion.

Crown received no alert over the weekend to expect the arrival of these records on the Monday morning. As a result, the Crown had had no opportunity to carry out its vetting responsibility in relation to the records or take any informed position in relation to the relevance of anything in the record to the issues in the trial.

The Crown asked the court to dismiss defence counsel’s attempt to inject an issue about these particular records into an already protracted trial at such a late stage and in such circumstances of surprise.

That request was not granted. Instead, the records were received for safekeeping, but not given an exhibit number or any other formal identification, and opportunity was provided to both counsel to make fuller written submissions on the issue. Attention to this issue was then set aside to focus on the needs of the still outstanding O’Connor dispute in relation to the Rogers Communications records.

In the appearance of December 16, 2011, further continuation dates were set for completion of this trial, and then on December 20, 2011, (an appearance required to address the management of the subpoenaed TPS record), the court released the sealed envelope to the Crown so that she could vet the records for the limited purpose of ascertaining whether there was anything in the record relevant to a contradiction of the complainant’s evidence that she had not called police in the past. This was done, including the ‘limited purpose’ constraint, at the request of both the Crown and an agent for defence counsel. The agent had reiterated the purpose of the defence request for disclosure/production of the record to be as provided by the constraint.

The Crown’s vetting yielded nothing in the TPS record to indicate that the complainant had ever called police in the past, and defence counsel was advised thereof in a fax transmission sent on December 21, 2011. This was in accord within the court’s direction to convey the results of the vetting to defence counsel within certain timelines. Her fax transmission required a response by 4:30 p.m. that day, in the event that the Crown had misapprehended the defence position or in the event that the defence position had changed, in order to enable her to fulfil her obligations to the court. The context for that was deadline for written submissions from each counsel, in the event that the vetting did not resolve their dispute, and an adjudication projected for January 3, 2012 to keep the trial aligned within continuation/completion dates reserved for early February 2012.

Defence counsel responded to the Crown on December 22, 2011, seeking a summary of the occurrence reports and pointing out that her failure to do that was frustrating the accused’s ability to both respond to her request and make written submission on the issue. The Crown declined that request, pointing out the constraints of O’Connor on both her and defence counsel in that regard.

On December 29, 2011, having heard nothing further from defence counsel, the Crown confirmed her vetting findings to him in writing.

On January 3, 2012, defence counsel delivered his submissions on these records to the court. They were accepted, notwithstanding his failure to abide the timelines for his submissions. Submissions have now been received from the Crown within the extended timeline provided as a result of the defence delay. No reply submission was received within the extended timeframe provided.

I have now considered the whole of what is before me on this TPS Records issue.

2. Specific to the “Likely Relevance” Threshold

This trial requires an adjudication of certain charges: - assault with a weapon, uttering threats, robbery, forcible confinement and breach of a recognizance -all

arising from an incident alleged to have occurred on July 20, 2010 in the complainant’s place of business.

This is the context within which the O’Connor threshold must be met.

It is not disputed in the trial that the property named in the subpoena is the complainant’s place of business.

It is apparent that the named telephone number is the same telephone number that was the subject matter of the O’Connor application. See Decision and Reasons released January 3, 2012.

The quest for information about any report of robbery prior to the report of this alleged robbery appears to be related to counsel’s characterizations of the evidence of the husband’s evidence as indicating that the complainant had previously reported a robbery to police, and her testimony that she had not.

It is his assertion that “if the ORSs would be of some use to the applicant, then the same would were (sic) to be disclosed”. (The acronym appears his short-form for “occurrence reports”). He submits that the court “is now in a position to review the Ors and compare it to evidence and submissions in order to determine relevance”, and “that the threshold of true relevancy has been met.”

He also repeats certain parts of his submissions made in the now dismissed O’Connor application; - asserting

1. that the accused right to full answer and defence is implicated by the information contained in the Ors;

2. that paragraph 12 of the complainant’s response to his O’Connor application, “provide a basis to conclude that the Ors have some potential to provide the applicant with added information not already available to the defence”;

3. that “moreover, the ORs are not only logically probative to the live issues in the trial, but they also have some impeachment value”;

4. that “given the evidence and para 12 (of the complainant’s response to his O’Connor application) before the court, the ORs are also probative of the live issues in the trial such as reasons for delay, veracity, recollection of events, credibility and reliability, applied specifically to the complainant’s evidence.”

He concludes with the same statement asserted in his submissions in relation to his O’Connor application: “It cannot be legitimately said that the Ors are clearly irrelevant”.

He also gives “one example” of how the ORs will be used: “to directly contradict the complainant on her explanation of delay.”

In the end, this sort of submission was not helpful.

It bears reiteration the right to disclosure is not an end in itself. The purpose of disclosure is to help ensure an accused’s right to fundamental justice with its dual issues of reliability of the result and fairness. The context within which the “likely relevance” of information held within the Toronto Police Services occurrence reports is to be evaluated, if there is to be fidelity to the O’Connor scheme, is a likely relevance to a material issue in the accused’s trial. The “likely relevance” that must be shown is a reasonable possibility that the information in this particular record is logically probative to an issue in this trial or the competence of a witness in this trial to testify.

3. On ‘Likely Relevance’ rooted in Complainant’s Response to his O’Connor Application

Defence counsel’s assertions in relation to the complainant’s response to his submissions in the O’Connor application in relation to the Rogers Communications records are the subject of findings made in the decision disposing of remaining claims in that application released January 3, 2012. They are not repeated here.

4. On Perception that the TPS Records fall within “Stinchcombe” Disclosure

It bears noting that the test for production of third party records is stricter than the test for disclosure of materials in the Crown’s possession. This is not a 1st party type of disclosure unless and until the court makes a production order.

As the Crown properly points out in her submissions, the absence of a 3rd party application in relation to the TPS record does not slide them into 1st party disclosure criteria or status.

It is after review by the trial judge, at the second stage of the O’Connor analysis and after the threshold of the first stage has been successfully crossed, that the test for production to the accused is similar to the test for Crown disclosure.

The O’Connor threshold exists to screen out requests that do not rise above fishing expeditions. I addressed this in the decision released on January 3, 2012 on the 3rd party application in relation to the Rogers Communications records.

Lost in defence counsel’s stance that the Crown’s refusal to provide summaries of the occurrence reports frustrates his ability to make response is appreciation that his “catch 22” argument is addressed in O’Connor. I dealt with this same “catch 22” argument in the reasons released on January 3, 2012 for dismissal of his claim to access to the Rogers Communications records. As articulated in that decision, a “catch 22” argument is not justification for a slide past the threshold required by O’Connor.

5. On “Likely Relevance” Rooted in Complainant’s Delayed Report and Credibility of her Explanation

Delay in the reporting of the alleged robbery is not in dispute in this trial. The complainant acknowledges that she did not contact police in the immediate aftermath of the alleged robbery, but rather some hours later that day. Defence counsel has already cross-examined her at length in relation to the lateness of her report and her explanation for that late report. The police record of the call indicates the time that police received her telephone call reporting this alleged robbery.

What Mr. Patel advances in support of threshold relevance is what he characterizes as a “very narrow issue” in the trial; namely; the complainant’s delay in calling the police due to her “concern that the police would not believe her or care to protect her because she works in the sex trade”.

Counsel asserts the delay as a “live issue”, because, as he sets out in relation to relevance at para 2 off in his submissions: - the complainant has given evidence regarding delay; “importantly”, the complainant has made submissions to the court regarding delay in her response to his 3rd party records application.”

Defence counsel’s concentration of this aspect of the Crown’s case appears to be rooted in his belief that because the alleged crime is not a sexual crime there are no ‘myths’ or ‘stereotypical’ thinking throwing up barriers in his exploration of her delayed report of the alleged crime. The goal appears to be to show that the robbery never happened, and that her late report to police is testament to her lack of credibility.

He has already cross-examined the complainant on both her delayed reporting and her explanation for her decision to not contact police in the immediate aftermath of the robbery alleged by her.

Unarticulated in his submissions is the likely relevance of anything in the TPS record material to an issue in this trial on the ‘delay’ as a ‘live issue.’

6. On “Likely Relevance” Rooted in the Right to Test Credibility of Witnesses

I found nothing to tie anything in the record to the “competence” of a witness to testify in the trial, as identified in O’Connor, nor did that appear to be a focus of defence counsel’s submissions.

The focus is credibility testing.

Defence counsel asserts that “the occurrence reports in the Toronto Police Service record are relevant to credibility, reliability of evidence, veracity and recall of the complainant.”

Cross-examination is a fundamental aspect of a fair trial. The right to cross-examine is protected by s. 7 of the Charter. Cross-examination is particularly crucial when credibility is the central issue, as it is in this case, in the trial.

The trial judge has discretion to deny lines of cross-examination sought by defence counsel, it is a discretion to be used sparingly.

The discretion to exclude the evidence or line of questioning intended to seek the evidence, is properly exercised where the probative value of the questioning or evidence is substantially outweighed by the prejudicial effect that it might have on a witness, on the integrity of the factual determination to be made by the court or on the administration of justice generally. See for example R. v. Osolin (1993) 1993 54 (SCC), 86 C.C.C. (3d) 481 (SCC).

It is a stage two evaluation within O’Connor, - once the threshold is passed.

Counsel points to a discrepancy between the evidence of the complainant that “she has never called the police prior to this matter”, as counsel characterizes her testimony on that point, and the testimony of her husband on June 3, 2011, as counsel characterizes it, “that she has called the police in the past.” “Indeed”, he submits “if the complainant is directly contradicted on her explanation of delay, then the live trial issues of veracity, recall, credibility and reliability are necessarily implicated.”

The actual testimony, taken as a whole on this point, is that the husband thought that the complainant might have called the police in the past, but that he was not sure about that. It is not the characterisation provided by counsel.

What “reasonable possibility” of “likely relevance” is thought to lie within the Toronto Police Service occurrence reports for credibility testing on this point is left unarticulated.

Veracity, recall, credibility and reliability are alive in every trial. The court’s task is to provide fair, but not unlimited or unfocused, opportunity for defence counsel to test that credibility. Relevance remains the key.

I took into account in this regard that defence counsel has made reference at various times in the trial, and in his request for summaries of the occurrence reports to his need to ascertain whether there is information about “discreditable conduct” of the complainant. That is the sort of fishing that O’Connor require the court to halt at the threshold.

I also took into account, counsel’s assertion of Browne v. Dunn ‘relevance’ at times when he was curtailed in a desired line of questioning, in the event that there was a ‘likely relevance’ there for these TPS records within the O’Connor threshold.

Counsel was rightly concerned about his duty to question a witness on a matter of substance before introducing contradictory evidence. In the end, I could not find within his submissions as a whole a matter of substance within the scope of Browne v. Dunn being advanced in relation to the likely relevance of these particular records.

I took into account the submission that the court itself had directed that the complainant’s testimony needed to be before the court to ground various arguments being launched by defence counsel. What was missed in those directions was the purpose of them; - to ascertain whether the Crown’s evidence relevant to the charges before the court yielded the grounding not apparent at the time of counsel’s initial submissions. What was provided was opportunity for the foundation to be laid in the course of the Crown’s case. It did not license a fishing expedition.

In the end, the court ran up against the same problems in this request that had been encountered by counsel for the complainant in her response to the O’Connor application in relation to the Roger’s Communications records and the Crown in her ability to respond to the request for access to the TPS occurrence reports; - insufficient articulation of the basis upon which production of the occurrence reports is sought; in short, the absence of foundation upon which to determine “likely relevance” within the meaning of O’Connor.

CONCLUSION AND DECISION

The request for access to the TPS record is denied.

The Crown properly points out that O’Connor makes clear that the proper time to seek access to 3rd party records is before the trial begins.

“Due diligence” is not a task suitable for management by repeated interruption of the flow of the trial.

There was ample time before the start of this trial on June 1, 2011 to bring a 3rd party application in relation to these particular 3rd party records.

This trial began eight months ago. The prosecution itself began some 18 months ago.

The fact that the complainant has now testified is not in itself a showing of threshold relevance for these TPS records any more than it was in itself a showing of threshold relevance in relation to the Rogers’ Communication records.

Whether the alleged incident actually happened and whether this particular accused participated in any way in it is the Crown’s task to prove beyond a reasonable doubt. There is no burden this accused in relation to these charges, nor has there ever been.

Four days are reserved at the beginning of February for any defence case. The complainant will not be recalled. I have noted the Crown’s case closed.

Counsel are to be ready to resume the trial on February 1, 2012, with the goal of completing it within the allocated 4 days reserved for it.

Released: January 19, 2012. ___________________

H.L. Katarynych, Trial Judge