Ontario Court of Justice

Toronto Region

Her Majesty the Queen v. John Thomas Stevenson

Ruling on Application for Costs

Justice W.P. Bassel May 2, 2012

Appearance

For the Crown (Respondent): Ms. J. Stanton email: jennifer.stanton@ontario.ca

For the Applicant: Ms. R. Gadhia email: roots@roots-of-law.com

Note

BY AGREEMENT WITH COUNSEL ON APRIL 16TH, 2012, THIS RULING IS BEING FORWARDED BY E-MAIL TO BOTH COUNSEL AS NOTED ABOVE, AND A TRUE COPY OF THE RULING WILL BE FORMALLY FILED IN 126 COURT ON MAY 2, 2012, FOR THE COURT FILE.

Introduction

This Ruling concerns an application for an award of costs against the Crown. The submissions commenced on February 2nd, and were continued on April 13th. On April 16th, I dismissed this Application, and indicated that written reasons would follow. These are those reasons.

I do not intend to repeat all of the submissions of both counsel in this matter, however, I have carefully considered both their written and oral submissions, and the authorities cited in making this decision.

Mr. Stevenson stands charged with a number of criminal charges, alleged to have occurred on June 2, 2011, including forcible confinement, mischief, assault charges, and the complainant is Ms. Lia Said.

Before I embark upon the procedural history and background of this matter, I will comment briefly on the application.

The Application

The essence of the application submissions include that notwithstanding what was agreed upon at a Judicial Pre-Trial on October 11, 2011, six written requests by the applicant seeking both disclosure and information as to the steps being taken to deal with the matters discussed at the JPT, the delay in causing independent counsel to be appointed, that no response to any of the applicant's six letters in particular was made by the Crown until January 24th, that the delays and continuing non-compliance with the disclosure requests and JPT undertakings has thwarted and impeded the ability of the applicant to make full answer and defence, and has caused unnecessary delay, caused an unnecessary Stinchcombe application, prejudice and expense to the applicant, and that the Crown's conscious indifference to its duty is to such a marked and unacceptable degree that an award of costs is warranted.

Background

On October 11, 2011 a Judicial Pre-Trial (JPT) was held at which time, inter alia, it was noted that a third party records application would be held regarding certain medical records. The consequence of this step would thus necessitate the complainant being contacted about that, and the appointment of independent counsel to represent the complainant. Also on the JPT form, is written "Crown will disclose prior complaints by her" and the exact meaning of what this entailed is very much in issue here.

After the October 11th JPT, the applicant forwarded letters to the Crown Attorney's office at fax number 416-327-6068, which letters are dated November 8, November 9, November 29, December 8th, December 20th, 2011, and January 11, January 18th, 2012, inquiring as to the disclosure of the occurrence reports as per the JPT meeting and other disclosure matters. The date of February 2nd, 2012 had been set for the third party records application. A letter was provided to the effect that Legal Aid Ontario were not notified of the third party application until January 13, 2012, which application and notification would be necessary to take steps to appoint counsel for the complainant on that type of application. Legal Aid notified the applicant on January 16th, 2012 that counsel for the complainant would be appointed for the third party application. On January 24th, Ms. Stanton, Crown counsel, contacted Ms. Gadhia, this being the first contact from the Crown's office to Ms. Gadhia, and Ms. Stanton advised her that Mr. Butt, who was secured as special counsel, was not available on the February 2nd proposed hearing date, and Crown requested that the date be vacated. Ms. Gadhia had forwarded all of her letters to the fax number set out as being the Crown's office number, and Ms. Stanton advised that she had only received 2 of the defence letters. Trial dates for April 16 and 17 had been in place, and this development raised the spectre of those dates being vacated. The applicant did not agree to vacate that February 2nd date, and then launched a Stinchcombe application returnable on February 2nd. As part of its response to that application, the Crown indicated that it had not agreed at the JPT to provide all occurrences involving the complainant as witness, complainant or accused, and the Crown indicated that the disclosure of any occurrences would be subject to the consideration of any residual privacy interest, and that 2 other occurrence reports were in existence but they would not be disclosed, for reasons of privacy for one, and lack of relevancy for the other. The applicant caused the preparation of subpoenas duces tecum for the Toronto Police Services, (TPS) and for the York Region Police Services with regard to information concerning contact by those police agencies with the complainant, and which were brought before me on February 2nd. On February 2nd, after the Crown reviewed the York Region papers, they were disclosed to the applicant, and ultimately 2 other police reports were disclosed, but the Crown would not agree to the release of one TPS occurrence report, taking the position that there existed a residual privacy interest to the complainant thus requiring that the complainant's counsel, Mr. Butt, be present for this issue.

Also, the applicant was seeking the name of the hospital where the complainant was treated for an injury, in order that an application could be made to secure those hospital records as part of the application, and in order to make full answer and defence. The Crown indicated that it would be necessary for Mr. Butt to be present for that question. At one stage, the Crown had disclosed 2 TPS occurrence reports and indicated that it was not aware of any others, whereas we have heard of the existence of other such reports which have since been disclosed, and one that has been held back, as I mentioned above. Also, on January 27th, Ms. Stanton advised the applicant that she was not aware of any criminal record for the complainant or that the complainant had been charged with any criminal offence.

The Respective Positions of Counsel

I received and considered both written and oral submissions from both counsel, and I do not intend here to repeat them.

In a nutshell, though it was the applicant's position, inter alia, that it acted with diligence, sent a number of proper disclosure request letters which went unanswered by the Crown until the 11th hour, that undertakings were given by Mr. Dimuzio, Crown Attorney at the JPT on October 11, 2011 for the disclosure of occurrence reports, and agreement that a third party application was to be conducted. The applicant also submitted that the Crown's omissions in not answering the letters disclosing the said reports in a timely fashion, in unduly delaying notification to Legal Aid for appointment of special counsel, the Crown's misconception classifying those reports as third party records rather than first party records, the incorrect information communicated to the applicant with regard to the number of occurrence reports, and criminal record information, has resulted in the applicant being thwarted in his ability to make full answer and defence, has caused unnecessary applications and delay, and that the Crown's conduct was of a conscious indifference to its duty and was a marked and unacceptable departure from what should reasonably be expected, and that it has caused prejudice to the applicant warranting the imposition of a costs award.

For the Crown, it is submitted, inter alia, that a blanket undertaking at the JPT to provide all occurrences concerning the complainant as witness, accused or complainant had not been given, that it was restricted to her qua complainant, and that inquiries would be made. The Crown also submits that the notification that a third party application would be made regarding medical records of the complainant, triggered the need for contact to both the complainant, and to Legal Aid to arrange for special counsel to be appointed, and that taking the steps to make contact with the complainant and arranging for the appointment of Mr. Butt as special counsel was done with reasonable diligence. The Crown submits that when it became apparent on January 24th, that Mr. Butt was not available on February 2nd for the third party application, that the Applicant should have and could have agreed to vacate that February 2nd date and that a new date be struck wherein all counsel would be available, and all of the disclosure issues could then be fully aired. The Crown also submits that the TPS Occurrence Reports are third party records, thus subject to the O'Connor regime, but that even if they are first party records, and subject to a Stinchcombe protocol, that the Crown must still, before disclosing, consider matters of relevance and that a residual privacy interest nonetheless exists which imposes a duty on the Crown to review the material. The Crown submits that its actions or inactions did not achieve that point where it was reckless, or a conscious indifference to its duty, or a marked and unacceptable departure from usual and reasonable standards of prosecution.

Analysis

Disclosure Obligations and First-Party vs. Third-Party Records

With regard to this issue of disclosure, I propose to borrow certain principles from Justice Watt's words in Bottineau. The Crown is obliged to disclose all relevant material in its possession or control, and this is not restricted to what it intends to present at trial. Subject to relevance and privilege, it includes information wherein there is a possibility that to withhold it will impair the right of the accused to make full answer and defence.

Whether the occurrence reports in question here, are third party records or first party records was a hotly contested question in this Application. In reviewing those cases, including Bottineau, Mills, McNeil, Kporwodu, and after hearing both counsel on this issue, it is my view that irrespective of whether they are in one or the other of the 2 regimes, that there does exist a residual privacy interest to the complainant in those police files which are in the Crown's possession. I base this from that jurisprudence, and for example, recognizing, as noted in Mills, that criminal investigative files may contain highly sensitive material which require examination for relevance and reasonable expectations of privacy. This then, triggers an obligation on the Crown. For the purposes of this Ruling, it is my view that those TPS occurrence reports are first party records. They would have been prepared by police officers who investigated the occurrence in question, they have remained in the possession and control of the police force whose members created them, and they are routinely disclosed to defending counsel. See Bottineau. With that said, however, to repeat, I believe that it is the obligation of the Crown to review those reports as part of that residual privacy interest principle.

Principles Applicable to Costs Awards

With regard to the principles applicable to the propriety of awarding costs, it was agreed by counsel that although I was not at that point 'the trial judge', that I did have jurisdiction to consider the application.

The awarding of costs in civil proceedings is a regular and usual result wherein costs generally follow to the victor, but they can also be granted to control inappropriate behaviour and to control the court proceedings. In Pawlowski, the Court of Appeal noted that the awarding of costs in a criminal case to an accused person is rare, being the exception rather than the rule. That principle has been repeated in later cases by our Court of Appeal as well. With that said, however, in R. vs. 974649 Ontario Inc., the Supreme Court of Canada recognized that in recent years costs awards have been granted as an effective remedy in criminal cases for breaches of the Charter, especially regarding disclosure obligations, as part of the Court controlling its process, and perhaps avoiding the alternative of a stay of the proceedings. In Jedynack, Justice Goodearle held that costs should only be made in that situation where, to summarise, the acts or failures amount to something well beyond inadvertent or careless failure to discharge a duty, to be in the realm of recklessness, conscious indifference to duty, or whether conscious or otherwise, a marked and unacceptable departure from usual and reasonable standards of prosecution, that it resulted in an indisputable and clearly measurable infringement or denial of a right, that the costs award is intended to show disapproval for conduct which resulted in serious prejudice to the accused and is founded in circumstances of clear and obvious compensatory need. See Jedynack.

Something more than a bona fide disagreement about the applicable law, or technical, unintended or innocent breach, whether clearly established or not, must be required. Costs are intended to discipline and discourage flagrant and unjustified Charter breaches. See 974649 Ontario Inc., and Leduc, Conduct of a Trial.

Application to the Facts

It is certainly troubling that only on January 24th did the Crown Attorney's office finally engage in contact with defence counsel. The defence inquiries should have been responded to in a much more timely fashion. The explanation by Ms. Stanton for this oversight that there was a separate fax number for the Domestic Assault team was not, in my view, an effort by her to exonerate or excuse the problem, or to shift blame that the letters should have been sent elsewhere. Ms. Gadhia sent the letters to the only number of which she had notice to send them. Clearly, the defence letters fell between 2 stools at the Crown's office, however, there is no evidence that they were being intentionally ignored. Internally, the Crown's office should have ensured that they were sent to the correct lawyer or Team in that office. As soon as Ms. Stanton got involved, she started acting, inquiring of the Detective in charge about the occurrence report issues from the JPT, and advising Ms. Gadhia as to the Crown's position regarding relevance issues. Nor is there any evidence that Ms. Stanton or anyone in the Crown's office was consciously indifferent to those letters. It seems that with this puzzling silence from the Crown's office regarding those letters, and the hearing date nearing, that counsel could have considered telephoning the Crown's office to see why there was no action whatever forthcoming, and inquiring as to which Crown prosecutor the file had been assigned. There is not a whit of evidence or suspicion on my part to support the defence submission that either or both the Crown or police officers intentionally withheld from the accused information about the complainant that was unfavourable to the complainant.

With regard to Ms. Stanton advising defence that as far as she was aware, she was not aware of the complainant having a criminal record, I accept her explanation that she inquired of the Officer in Charge who had informed her that the CPIC and Toronto Case Tracking search result was that the complainant did not have a criminal record or outstanding charges, and she believed that to be correct. Information in the hands of the York Region Police which noted contact with the complainant, were records and information in the possession of another police force and not in the Crown's hands at that point, and the defence submission that the Crown was misleading her was, in my view, inappropriate. With regard to the occurrence report issue, 2 had been disclosed, and it was submitted that the Detective was unaware of a third one, but when it was obtained, that the Crown vetted it and provided it to the defence. With regard to other occurrence reports which have been mentioned, their whereabouts and existence should have been looked into at an earlier point, and if they passed muster as to relevance and no privilege, they should have been disclosed, or the defence notified as to the Crown's reason for not providing them. We know that this not happening was exacerbated by the letters falling into what I will call the black hole at the Crown's office. Although I believe that there exists that residual privacy interest of which I have spoken, and the need to vet the document, that in and of itself does not justify the non-response to the defence letters. With regard to contact with the complainant, her desire to have independent counsel, lining up special counsel, the fact that Legal Aid was not notified of the third party application until January 13th, that timing leaves something to be desired, and this should have been done at an earlier point, ideally during the same time that the authorities were endeavouring to contact the complainant. With that said, special counsel was quickly secured on January 20th once the proper contact was made, although we know that he was not available for the February 2nd hearing date. Without special counsel being available for that date, and with a number of privacy and disclosure issues to be considered as part of the overall quest for the defence to obtain what it has submitted was important, historical and other information about the complainant which, in the view of the defence, would impact on her credibility, and with the Crown putting the defence on notice at that point that relevancy and privacy were at issue, I believe that the applicant should have agreed to vacate that February 2nd date, and obtain an early new date wherein all of the applications and request for disclosure could be consolidated and fully litigated with all necessary counsel present.

What took place, or indeed did not take place from after the JPT on October 11, 2011, until things finally started to happen when Ms. Stanton got involved on January 24th, was certainly not a model of perfection by the Crown. Where I have referred to, or am referring to the Crown, I want to make it quite clear that I am referring to the Office of the Crown Attorney and not to Ms. Stanton.

There is no evidence whatever that the Crown misled counsel, or intended to improperly hold back any disclosure, or conceal relevant evidence. Whereas the issues and defence inquiries should have been addressed in a much timelier fashion by the Crown, even if the Section 7 Charter rights of the defence were breached, the imposition of a costs award should be rarely imposed and only where there has been an indisputable and clearly measurable infringement or denial of a right. In considering all of the information that was provided to me, while what took place here was unsatisfactory, I am not satisfied that there existed, to refer to Jedynack, acts or omissions that were well beyond careless or inadvertent, nor do I believe that there was such misconduct as to constitute recklessness or indifference to duty, or a marked and unacceptable departure of Crown conduct. This is not that situation, for example, where the Crown has wrongfully withheld disclosure, only to be discovered on the eve of, or during or after the actual trial. Obviously some line of communication broke down in the Crown's office, however, I do not find that there was recklessness or conscious indifference by the Crown. In addition, in considering the issue of prejudice to the defendant, it has not been demonstrated that the applicant suffered serious prejudice, or that there is a clear and obvious compensatory need by the applicant. The defendant was not in custody or subject to any strict bail conditions. I say this recognizing that the postponement of dealing with the matter keeps the charges looming over his head, along with the other sequelae that comes from that.

The applicant has not established that an award of costs is warranted in all of these circumstances.

Conclusion

For the above reasons, the application is dismissed.

Dated at Old City Hall this 2nd day of May, 2012.

Judge W. P. Bassel