Podolsky v. Cadillac Fairview Corp. Ltd.

Citation: 2012 ONCJ 545, 112 O.R. (3d) 22

Court: Ontario Court of Justice

Judge: Green J.

Date: August 28, 2012

Headnote

Criminal law -- Private prosecution -- Production of documents -- Defendants being subjects of private prosecution for alleged regulatory offences arising from bird collisions with their buildings -- Prosecution's case resting substantially on evidence gathered by environmental advocacy organization which monitored and recorded bird strikes at commercial developments for more than ten years -- Defendants bringing mid-trial application for order for production of organization's internal records respecting its co-operation with prosecutor in investigation of defendants -- Application dismissed -- Application governed by third-party production regime -- Documents sought not likely relevant to any issue at trial.

Facts

The defendants were the subjects of a private prosecution for alleged regulatory offences arising from avian collisions with the highly reflective glass-clad walls of the defendants' property. The nominal prosecutor was an employee of Ecojustice, an environmental advocacy group. The prosecution's case against the defendants rested substantially on evidence gathered by volunteer members of FLAP, a non-profit environmental advocacy organization which monitored and recorded the consequences of bird strikes at several Toronto-area commercial developments for more than a decade. For much of that time, FLAP had maintained a co-operative relationship with the defendants. In 2009, FLAP began to share the bird strike information with Ecojustice. At trial, before electing whether to call evidence, the defendants brought an application for the production of FLAP's internal records respecting its co-operation with Ecojustice in the investigation of the defendants. Those documents were said to be relevant to potential arguments that the defendants were subjected to an unreasonable search and seizure and that the proceedings amounted to an abuse of process, and also to be relevant to the reliability of FLAP data and the credibility of FLAP witnesses at trial.

Decision

The application was dismissed.

Reasons

A. Introduction

[1] This application for documentary records is brought in the course of a private prosecution of the defendant corporations for alleged regulatory offences resulting in the distress, harming, injury or death of birds. The offences at issue are set out in the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 and the Environmental Protection Act, R.S.O. 1990, c. E.19 and the federal Species at Risk Act, S.C. 2002, c. 29. The nominal prosecutor, Liat Podolsky, is an employee of "Ecojustice", an environmental advocacy group that has assumed carriage of the prosecution. The applicants/defendants (hereafter, the "defendants") are the owners and managers of the Yonge Corporate Centre ("YCC"), a complex of office buildings in northern Toronto. The prosecution's case against the defendants rests substantially on evidence gathered by volunteer members of the Fatal Light Awareness Program ("FLAP") respecting avian collisions, or "bird strikes", with the highly reflective glass-clad walls of the YCC. Like Ecojustice, FLAP is a non-profit environmental advocacy organization, although its mandate is narrowly focused on safeguarding migratory birds in urban environments.

[2] FLAP has monitored and recorded the consequences of bird strikes at several Toronto-area commercial developments for more than a decade. For much of that time, it has maintained a co-operative relationship with the management of the YCC while pursuing its bird-rescue and data-collection activities at that site and, to a lesser degree, the testing of various bird-deterrent strategies. At least some of the data annually compiled by FLAP was shared with the YCC management. In 2009, FLAP began to share the bird strike information it collected at the YCC with Ecojustice. In time, if not immediately, FLAP came to understand that Ecojustice intended to use this data in a prosecution of the owners and managers of the YCC for related regulatory offences. FLAP did not advise the YCC management of its co-operation with Ecojustice.

[3] The defendants' application proceeds by way of written submissions filed by the parties and founded on the trial record. The evidentiary record is supplemented by a number of additional assertions of fact by both parties in their respective "written argument". These ancillary factual assertions are not supported by affidavit or stipulations. Neither party appears to object to the other's amplification of the record in this manner. But for this implicit agreement, I would be loath to treat these unsupported assertions as statements of fact on which I may in any way rely.

[4] The documents that form the subject matter of this motion are, in essence, FLAP's internal records respecting its co-operation with Ecojustice in the investigation of the defendants. These documents are in the possession of Michael Mesure, the executive director of FLAP and the last of 13 witnesses called by the prosecution. Mr. Mesure did not tender submissions, personally or through counsel, in response to the defendants' production application. However, I am informed that Mr. Mesure, on behalf of FLAP, opposes producing the documents sought by the defendants. I am also informed that Mr. Mesure agrees to be bound by any order resulting from the defendants' application. Further, by way of preliminary protocol, no objection is made to the defendants' failure to serve Mr. Mesure with a subpoena duces tecum compelling his attendance with the targeted documents.

[5] I summarily dismissed the defendants' application for production before they elected to call evidence on August 16, 2012. My reasons follow.

B. Background

[6] The defendants seek production of several classes of FLAP documents through Mr. Mesure for their inspection. But for the possibility of their recall pending a favourable ruling on this motion, the defendants' counsel have completed their cross-examination of all of the FLAP-related witnesses called by the prosecution at this trial. This includes a number of FLAP volunteers and two officers (and the only two paid employees) of the organization: Susan Krajnc and Michael Mesure. The defendants' position at the time this motion was argued was that they would decide whether to seek leave to re-open their cross-examination of Mr. Mesure, and perhaps others, once the requested documents were ordered produced and they had had an opportunity to review them.

[7] As set out in the defendants' materials, the "documents" sought are:

(a) From January 2009 to March 7, 2011, any document, whether electronic or hard copy, that relates specifically to any proposed or ongoing investigation by Ecojustice of the accused [i.e., the defendants], or generally to an investigation;

(b) Specifically:

(i) Any e-mails or other correspondence between Ecojustice and FLAP relating to an investigation of and/or potential legal measures against property owners that include (expressly or by implication) the accused; and

(ii) Any notes of meetings between Ecojustice and FLAP that relate to an investigation of and/or potential legal measures against property owners that include (expressly or by implication) the accused; and

(iii) Any e-mails or other correspondence between members of FLAP or notes of meetings involving members of FLAP discussing the investigation and/or potential legal measures against the accused.

The defendants oppose the suggestion that any potentially producible documents first be submitted to me to assess their relevance and any claims of privilege; "it would be improper", they say, "to put potentially inflammatory and prejudicial documents before the Court". Trial judges, of course, routinely disabuse themselves of information, often highly inflammatory, they rule inadmissible following a granular voir dire. Further, despite their primary representation, the defendants also suggest "any irrelevant or privileged information [be] redacted [by] some method that clearly identifies the redaction". As relevance and privilege are, if contested, ultimately, matters of judicial determination, it is, frankly, difficult to reconcile the two positions advanced by the defendants. In any event, the defendants' proposed approach runs counter to the two-stage procedure directed by the Supreme Court of Canada on such applications and to which I soon return.

[8] The targeted documents are referable to the 26-month period from January 2009 to March 7, 2011. The closing bracket reflects the date the informations before me were sworn. The reference to January 2009 refers to the first meeting between representatives of the two advocacy organizations, Ecojustice and FLAP, as further detailed below.

C. Evidence

[9] That FLAP and Ecojustice affected some degree of co-operation is not in dispute. For purposes of this application, I am prepared to accept the defendants' assertion that FLAP never expressly advised the defendants prior to the laying of charges in early March 2011 that, commencing, it appears, in 2010, the bird strike information collected by the FLAP volunteers was shared with Ecojustice for purposes of assessing and, ultimately at Ecojustice's initiative, grounding a prosecution of the defendants for provincial and federal regulatory offences. There is no evidence to suggest other than that there was no material variation in the long-settled bird strike collection and data recording practices of the FLAP volunteers at the YCC following the involvement of Ecojustice or the latter's decision to initiate a regulatory prosecution. I note, as well, that FLAP's bird strike data is publically available; as said by Mr. Mesure, "[T]his information has been posted on our website. It's here. It's public information. It's not something we hide from people." Finally, I also note that no issue is taken with the prosecution's assertion that defendants attended a parallel Ecojustice prosecution of another property owner/management corporation for similar offences in the spring and summer of 2011 (and/or have transcripts of those proceedings), during which Mr. Mesure and a number of FLAP volunteers were cross-examined with respect to some issues closely akin to those arising before me and which are said to ground this application.

[10] The association between the two advocacy groups began in early 2009, when members of Ecojustice and members of FLAP met at an environmental workshop in Ottawa. One subject of their discussions was the possibility of prosecuting certain property owners, including the defendants, for regulatory offences related to the bird strikes at buildings the defendants owned and managed. Some further meetings or, at least, communications between the two advocacy groups followed, as freely acknowledged in the evidence of the two FLAP employees -- Michael Mesure and Susan Krajnc -- who testified at this trial.

[11] The post-charge chronology is of considerable importance to the resolution of this application. The prosecution provided the defendants with extensive initial disclosure of the case to meet within about two months of the charges being laid -- that is, about 11 months before the trial began. This information included, inter alia, disclosure about the original contact between FLAP and Ecojustice in January 2009. Further supplementary disclosure was afforded through 2011 and 2012 (including during the course of the trial), often in response to disclosure requests from counsel for the defendants. This additional disclosure included, on March 28, 2012 (close to a week before the trial's commencement), an "updated" witness statement attributable to Susan Krajnc in which it was first made clear that the possibility of prosecution of the defendants was part of the January 2009 discussions. Ms. Krajnc was not called as a witness until April 12, some two weeks after disclosure of her "updated" statement.

[12] The defendants' position is that they "did not realize that the [updated] witness statement of Susan Krajnc contained new material information until shortly before" her cross-examination on April 13, and that they applied for production "as soon as [they] had an evidentiary foundation for the existence and relevance of the documents" they now seek. That "as soon as", as best I can make out, coincided with the oral advancement of the application on April 16, deep into the cross-examination of Mr. Mesure, the last witness called by the prosecution. The request for, in essence, production of any records respecting the relationship between FLAP and Ecojustice and the possible prosecution of the defendants forms the core of the instant application before me. I note, not incidentally, that Mr. Mesure, for one, testified that while others may have, he personally never kept notes of any of the meetings with Ecojustice. Nor did he allow that he relied on or even reviewed any notes of these meetings or other communications in his preparation to give evidence.

[13] With all due respect, I find unconvincing if not disingenuous the defendants' explanation for their delay in requesting production of the documents they now seek. They had been promptly informed, through disclosure, of the early 2009 meeting between FLAP and Ecojustice. They knew through their attention to the 2011 trial proceedings of the relationship between the two groups. Through disclosure they also knew that the FLAP volunteers had been interviewed by Ecojustice. They knew, if not through earlier disclosure, of the possibly forensic purpose of that relationship as a result of the disclosure update they received approximately a week prior to trial. And the testimony of Mr. Mesure added nothing to their knowledge of "the existence and relevance of the documents". They could not, I conclude, have done other than infer the development of a professional, investigative partnership between the two advocacy groups before trial commenced.

[14] The defendants' conduct of the trial confirms this reasoning. Defence counsels' questioning of the very first FLAP witness explored the timing of his interview by Ecojustice, and all the FLAP witnesses were examined as to their relationship with the prosecutor. The cross-examination of Ms. Krajnc, FLAP's program manager, began with a vigorous exploration of the FLAP-Ecojustice discussions at the Ottawa workshop in January 2009, the genesis of the "idea" of pursuing legal action against the defendants, and meetings between FLAP, including Ms. Krajnc and Mr. Mesure, and Ecojustice beginning about a month thereafter. Yet, prior to their arraignment (including a judicial pre-trial), the defendants did not request disclosure or voluntary production of the now sought documents or suggest the possibility of a timely production application. Nor did they advance a production application at the commencement of the trial or even during or at the conclusion of Ms. Krajnc's evidence. That application was not verbalized until the prosecution's case was almost closed.

[15] Based on the evidence before me, I have no difficulty concluding that the defendants knew or ought to have known before the trial began that the evidence to be led by the prosecution was largely derived from FLAP's data-collection activities and historical relations with the YCC management, that FLAP had co-operated with Ecojustice and, based on the exchange of correspondence between YCC and FLAP, that the latter was likely to have maintained at least some documentary records of its dealings with and in response to Ecojustice on this file.

D. Analysis

(a) Introduction

[16] To the extent they exist, the documents sought by the defendants are not in the prosecutor's possession. They are in the possession of FLAP, an independent and arm's-length organization. Accordingly, the defendants' application is properly styled for production of third party records rather than disclosure. As the records sought are not apparently subject to any claim of privilege or special confidentiality, nor to any statutory regime affecting the production of third party records (as, for example, is the case with those records addressed through ss. 278.1 - 278.91 of the Criminal Code, R.S.C. 1985, c. C-46 or s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5), determination of the defendants' application is governed by the common law and, in particular, those formulations developed by the Supreme Court in R. v. O'Connor, [1995] 4 S.C.R. 411 and R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.

[17] Charron J., speaking for the court in McNeil, at para. 27, summarized the final procedural steps in such applications as follows:

[T]he judge determines whether production should be compelled in accordance with the two-stage test established in O'Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused.

[18] The initial burden is on the production applicant -- here, the defendants -- to satisfy the court that "the documents are likely relevant to the proceedings" (para. 28; emphasis added). Unlike disclosure applications, there is no presumption of relevance respecting information in the hands of third parties. Further, the threshold standard of "likely relevance" invokes a court's "gate-keeper function" to ensure that trials remain focused "on the issues to be tried and that scarce resources not be squandered in 'fishing expeditions' for irrelevant evidence". The O'Connor court, at para. 24, characterized the "likely relevance" threshold as a "significant" but not "onerous" burden. It did, however, draw an important distinction, at para. 22, between the standards applied on disclosure and production:

In the disclosure context, the meaning of "relevance" is expressed in terms of whether the information may be useful to the defence . . . . In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. (Underlining in original; italics added; citations omitted)

"Issue at trial", in turn, includes witness credibility and the reliability of other evidence: O'Connor, supra; and McNeil, supra, at para. 33.

[19] If "likely relevance" is established, then the documents are produced to the trial judge for his or her inspection to determine whether production to the defendant should be ordered. The factors and interests to be judicially balanced in this latter exercise include the necessity of the documents to a defendant's ability to make full answer and defence, their probative value, and the nature and extent of the reasonable expectation of privacy invested in the record. The starting point here, says the court in McNeil, is that of assessing "true relevance". As put at para. 42:

Once a court has ascertained upon inspection that third party records are indeed relevant to the accused's case, in the sense that they pertain to an issue in the trial as described above, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: If the [truly relevant] third party record in question had found its way into the Crown prosecutor's file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application.

[20] The preliminary question, then, may be reduced, in the language of O'Connor and McNeil, to what is the "issue at trial" to which the sought documents are said to be relevant? Or, more colloquially put: relevant to what? This question, in turn, begs an understanding of the defendants' legal theory or position. As rhetorically asked in Carter v. Canada (Attorney General), 2012 BCSC 886, at para. 997, "without a legal framework, how is the primordial task of determining the relevance of evidence possible?" Returning to the immediate application, the defendants advance their assertion of relevance on three footings:

(1) first, it is said, the documents are "clearly relevant" because they "relate" to "whether FLAP was acting in a capacity similar to that of a police officer investigating a crime, now being prosecuted by Ecojustice". This, in turn, feeds into whether the defendants then have been "subjected to an unreasonable search and seizure justifying a stay of proceedings or exclusion of the evidence illegally obtained";

(2) second, the documents are relevant to the "whether there has been an abuse of process by Ecojustice . . . in bringing this private prosecution, based on data collected under false pretences, without notice of a potential criminal prosecutions, which requires that these proceedings be stayed or that the evidence illegally collected be excluded"; and

(3) third, the documents are relevant to "whether the FLAP data is reliable" given the investigatory impetus of their collection, and "whether the FLAP witnesses, in particular Mr. Mesure, are credible".

For ease of reference, I identify these three claims of relevance as privacy (Canadian Charter of Rights and Freedoms, s. 8), abuse of process and, finally, credibility and reliability. I address each in turn below.

(b) The defendants' privacy claims

[21] The defendants' application for production is initially founded on the documents' stated relevance to the claim that they have "been subjected to unreasonable search or seizure". Although careful not to expressly invoke the Charter (nor, indeed, any law) in aid of this position in its pleadings, the defendants' claim must be grounded, if at all, in the Charter s. 8 right to be secure against unreasonable search or seizure -- often abbreviated as the right to privacy. The appropriate redress for this alleged constitutional indignity, they say, is an order excluding the "evidence illegally obtained" by FLAP (that is, a remedy available under s. 24(2) of the Charter) and, although not expressly pled, likely any derivative evidence or opinions. (In the alternative, the defendants also seek "a stay of proceedings" for the same alleged "unreasonable search and seizure". As a breach of s. 8 Charter rights does not admit, in itself, to a stay of proceedings by way of remedy, there is no need to say anything further about this part of the defendants' remedial pleadings.)

[22] The factual premise for this claim, as best I understand it, is that the consent afforded FLAP and its agents to attend on the defendants' property and there conduct its bird strike monitoring and related activities would never have been granted had the defendants known that the information collected by FLAP would later be tendered as evidence in the defendants' prosecution. Thus, the argument might go, FLAP's failure to fully inform the defendants of its forensic purpose vitiates the validity of any consent and converts what would otherwise have been a lawful activity into one tainted by constitutional trespass.

[23] I note immediately that the defendants do not challenge any of the legislative provisions pursuant to which they are being prosecuted. The defendants' constitutional claim, here, is founded on conduct said to amount to a violation of their s. 8 rights -- not a s. 52 challenge to the validity of that legislation. As parties directly affected by the legislation, the defendants are entitled, if grounded, to bring the latter claim. They may not, however, seek relief for an alleged Charter violation of the kind here at issue unless the impugned conduct is that of the state or its agents or persons performing a patently government function.

[24] Section 32(1) of the Charter declares that the Charter "applies to the Parliament and government of Canada . . . and to the legislature and government of each province". As explained by Professor Peter Hogg in the leading treatise on domestic constitutional law, "The Charter regulates the relations between governments and private persons, but it does not regulate the relations between private persons and private persons": Constitutional Law of Canada, 5th ed. suppl. (Toronto: Carswell, 2007), at 37-29. Accordingly, FLAP's conduct "can only come under s. 8 scrutiny" if, as said by a unanimous Supreme Court in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 25, FLAP and its volunteers

. . . can be categorized either as "part of government" or as performing a specific government function (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624), or if they can be considered state agents (R. v. Broyles, [1991] 3 S.C.R. 595; M. (M.R.), [1998] 3 S.C.R. 393]).

[25] FLAP is most certainly not "part of government". Further, the FLAP volunteers collecting and compiling the relevant information at the YCC were private actors, not agents of the state or persons performing a government function: see R. v. Buhay, supra, at paras. 28-31. Nor is Ecojustice, the effective prosecutor, a government agent, delegate or employee, nor is it charged with the performance of any function reserved to the government. If, as the Supreme Court held in Buhay, provincially regulated security guards purposefully engaged in the search and seizure of bus lockers in pursuit of substances rendered unlawful by virtue of federal criminal statute are neither state agents or persons performing a government function, then, a fortiori, the impugned conduct of both FLAP and Ecojustice fall equally outside the pale of Charter scrutiny. In the result, the defendants cannot advance a s. 8 claim and have no alternative basis at common law to exclude otherwise probative evidence on grounds of an allegedly unreasonable search. Accordingly, their application for production on this claimed platform of relevancy inevitably fails.

[26] The unreasonable search claim to relevancy would also fail, in my view, as a consequence of the lateness of the application. Much if not all of the evidence the defendants wish to have excluded has already been admitted at this trial. As I construe the record, the defendants, through disclosure, knew adequately in advance of trial of the first meeting between members of FLAP and Ecojustice in Ottawa in early 2009 and of the salient content of their discussions. Defence counsels' questioning of a number of the FLAP witnesses was sharply focused on establishing the extent of any ensuing co-operation between the two organizations. That such co-operation occurred was, in short, hardly a surprise to the defendants' counsel. Yet, when tendered, the defendants did not object to the adduction of the impugned evidence on the basis of an alleged breach of their s. 8 Charter rights. Nor have they yet directly formally advanced such claim. Rather, now, at the effective conclusion of the prosecution's case, the defendants demand production of third party records -- records they could readily have rationally inferred existed long before their arraignment -- that they say may assist them in securing an exclusionary remedy for evidence that has already been admitted.

[27] My concern respecting timing is premised on more than mere formalism. Objections to the admission of evidence are to be taken at or before the time that evidence is tendered. Where, as here, the objection is effectively founded on a claim of constitutional violation, the determination of whether the alleged breach has occurred and whether exclusion, in whole or part, is the appropriate remedy is conducted by way of a Charter voir dire hearing. On not infrequent occasion, the Charter hearing and the trial advance by way of a "blended proceeding". However, proceeding in such manner depends on the consent of all parties -- and, of course, the trial judge's ratification. Had the defendants signalled at the appropriate juncture their intention, on constitutional grounds, to resist admission of the FLAP observations, record-keeping and compiled data, the prosecution may well have insisted on a s. 8 voir dire independent of the trial proper. The defendants would then have borne the burden of adducing the necessary evidence (including the direct examination -- rather than the cross-examination that has occurred -- of at least some of the witnesses called by the prosecution as it led its case) and of establishing on a balance of probabilities both the alleged Charter violation and the correctness of the remedy sought.

[28] I recognize that extraordinary circumstances -- such as the unanticipated emergence of truly fresh and potentially material evidence or a dramatic interim change in the law -- may, on grounds of fairness, allow for the exercise of a judicial discretion to permit a party to advance an otherwise tardy or inappropriate objection to the admissibility of evidence that has already been received, particularly, as here, in a judge-alone trial. No such extenuating circumstances obtain in this case.

(c) Abuse of process

[29] "Abuse of process" is a doctrine invoked by courts to protect the integrity of their own process. As affirmed by the Supreme Court in R. v. Jewitt, [1985] 2 S.C.R. 128, at pp. 136-37 S.C.R.:

[T]here is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive and vexatious proceedings. (See, also, by way of example only, R. v. Keyowski, [1988] 1 S.C.R. 657, at pp. 658-59 S.C.R.; R. v. Mack, [1988] 2 S.C.R. 903, at p. 941 S.C.R.; R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667 S.C.R.; R. v. Scott, [1990] 3 S.C.R. 979, at pp. 992-93 S.C.R.; R. v. Power, [1994] 1 S.C.R. 601, at pp. 612-15 S.C.R.; R. v. O'Connor, supra, at para. 59; R. v. Campbell; R. v. Shirose, [1999] 1 S.C.R. 565, at para. 20; and R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 33-34.)

[30] Although only skeletally developed in the defendants' pleadings, their position, it appears, is that FLAP's alleged complicity with Ecojustice in the collection of the bird strike data without disclosing a parallel forensic purpose of such information-gathering to the defendants unfairly abused both the defendants' trust and the process of any court in which a prosecution of the defendants predicated on this data is brought. An abuse of process, when found, may well ground a stay of proceedings. In the remedial alternative, the defendants here seek the exclusion of the FLAP-collected information respecting bird strikes at the YCC. Needless to say, the practical consequence would be the same: even absent the imposition of a judicial stay, the prosecution would likely be terminally frustrated if the alleged abuse of process was found and exclusion granted by way of remedy.

[31] The doctrine of abuse of process finds its origins in the common law. With the advent of the Charter, the courts increasingly turned to s. 7 to protect against such abuse and, with narrow exception, sheltered the entirety of the doctrine under this Charter guarantee. Molloy J. captured this evolution in United States of America v. Tollman, [2006] O.J. No. 3672, 212 C.C.C. (3d) 511 (S.C.J.), at para. 14:

Traditionally, the common law power was directed towards abuse that undermined the integrity of the judicial system, whereas the abuse of process power under the Charter tended to address abuse that affected individual rights. In R. v. O'Connor, supra, the Supreme Court of Canada recognized and endorsed both streams of the abuse of process power and noted that the evolution of the power has resulted in the merger of the two. (See, also, R. v. Nixon, supra, at paras. 35-37.)

[32] But for its theoretical application to a rare and ill-defined compass of situations, the common law approach no longer exists as a free-standing source for a defendant's protection against abusive conduct. The Supreme Court, in R. v. O'Connor, supra, at para. 71, explained that the s. 7 "principles of fundamental justice both reflect and accommodate the nature of the common law doctrine of abuse of process. . . . [T]here is no real utility in maintaining two distinct analytic regimes." As to any remaining reliance on an independent common law doctrine, the Supreme Court notes, at para. 70, that "the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court's process" (emphasis added).

[33] As with their implicit claim for s. 8 protection, the defendants cannot rely on s. 7 of the Charter to advance their allegation of prosecutorial abuse. The FLAP volunteers who collected the impugned data are not state agents or functionaries, nor are they performing a state sanctioned or delegated purpose. Nor is or does the private prosecutor in this case. Accordingly, the defendants' allegation of abuse of process must find purchase, if at all, in the common law.

[34] Further, the alternative remedy sought -- that of exclusion -- is not one conventionally available, at least in Canada, on those relatively rare occasions when an abuse of process is found at common law; the relief afforded at common law for such abuse is a judicial termination of the prosecution by way of a stay of proceedings. This is not the case where the alleged misconduct is subject to s. 7 analysis as the Charter relief available for breach of constitutionally protected rights, as prescribed by s. 24(1), includes "such remedy as the court considers appropriate and just in the circumstances". As said by Fish J. on behalf of a unanimous Supreme Court in R. v. Bellusci, 2012 SCC 44, at para. 18 (here adopting his own words, then in dissent, in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 42), "the very terms [of s. 24(1)] confers on trial judges the widest possible discretion" (emphasis in original). (See, also, R. v. Mills, [1986] 1 S.C.R. 863, at p. 965 S.C.R.; R. v. 974649 Ontario Inc. ("Dunedin Construction"), 2001 SCC 81, [2001] 3 S.C.R. 575; and Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 17.) In instances of demonstrable abuse of process, this remedial Charter-founded discretion encompasses the exclusion of evidence, as affirmed, for example, by the Court of Appeal in R. v. McMillan, [2003] O.J. No. 3489, at paras. 51-52, and, earlier, by the Quebec Court of Appeal in R. v. Xenos, [1991] J.Q. no 2200, 70 C.C.C. (3d) 362 (C.A.) (cited by the Supreme Court in O'Connor, supra, at para. 66, as "an excellent example . . . of . . . courts . . . finding appropriate remedies in lieu of stays for abuses of process").

[35] Indeed, creative, situation-tailored remedies short of a stay are increasingly encouraged by appellate courts for prosecutorial misconduct since, as has been re-affirmed on many occasions, "a stay of proceedings is only appropriate 'in the clearest of [such] cases'": O'Connor, supra, at paras. 59 and 82. (See, also, R. v. Jewitt, supra; R. v. Shirose, supra.) These jurisprudential developments are well described by Dawson J. in R. v. Ahmad, [2008] O.J. No. 5915, 77 W.C.B. (2d) 804 (S.C.J.), at paras. 27-28:

Prior to [O'Connor] a showing of abuse of process was tied inextricably to establishing entitlement to the drastic and rare remedy of a stay of proceedings. A stay of proceedings is only to be granted in the clearest of cases and will be relatively rare. While that has not changed, it is now recognized that a lesser remedy may be appropriate where there is a violation of s. 7 of the Charter in circumstances that, in earlier days, were in almost all cases considered only under the [common law] doctrine of abuse of process. . . . To succeed in showing abuse of process prior to O'Connor the accused had to discharge the "clearest of cases" burden[.]

O'Connor recognized that if the abuse of process analysis is carried out under the rubric of determining whether a violation of the Charter has been established, the same constraints do not apply. Under s. 24(1) of the Charter the court has the ability to craft a wide range of appropriate remedies short of a stay of proceedings.

[36] The defendants have no claim to Charter relief on the basis of the conduct of the private actors -- FLAP and Ecojustice -- whose actions they assail. They can only secure traction, if at all, under the doctrine of "abuse of process" through establishing such abuse at common law. Further, to qualify as cognizable abuse of process, even in theory, the conduct they must demonstrate amounts to abusive is that of the prosecutor -- not that of FLAP which, ultimately, has no substantive role in the carriage of the prosecution. Further still, the defendants, if they continue to seek redress by way of exclusion of evidence, will have to establish that such remedy is legally available under the common law doctrine and remedially appropriate to the abuse they allege occurred.

[37] Although perhaps an extreme example, I find it difficult to conceive of a corporate defendant's abuse of process application enjoying success where a disgruntled or conscience-bound employee -- in effect, a whistleblower -- provides the documentation grounding the corporation's prosecution. The errant employee may be liable to criminal prosecution for theft or, by way of civil action, for, inter alia, a breach of contract or fiduciary duty. However, based solely on this hypothetical fact-pattern I cannot see how the integrity of a court's process would be jeopardized by permitting the prosecution against the employer to proceed.

[38] Without more, the defendants' pleadings on this application simply fail to persuade me that there is any realistic viability or, put otherwise, an "air of reality" to their claim of abuse at common law or that the remedies they seek are both theoretically and practically available. This expression of the threshold for judicial sanction on production applications is not of my invention. In R. v. LaRosa, [2002] O.J. No. 3219, 166 C.C.C. (3d) 449 (C.A.), for example, the Court of Appeal applied the "air of reality" test to decline production, defining the standard, at para. 78, as "some realistic possibility that the allegations can be substantiated if the orders requested are made". Further, as the court made clear, at para. 81, it is the applicant for production who "bears the burden of demonstrating the 'air of reality'". Absent satisfaction of this relatively low but critical threshold with respect to both the occasioning of an abuse of this court's process and the availability of the remedy or remedies sought for that alleged abuse, the defendants' claim of records relevancy on this basis is futile. (See, also, United States of America v. Tollman, [2006] O.J. No. 5588, 2006 CarswellOnt 6831 (S.C.J.), at para. 21, where Molloy J. made clear that "it is not enough for the applicant to demonstrate that his allegations are not ridiculous; he must be able to show some reasonable prospect of success on the application".) Applying the language of O'Connor and McNeil: like the defendants' privacy claim, a production application founded on abuse of process, as currently framed, does not meet the threshold standard of "likely relevance".

[39] Consistent with the common law exception preserved in O'Connor, I acknowledge that a court must have the authority to prevent the abuse of its own process even in those relative rare situations where the Charter is unavailing. As said in United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 36, "[a]lthough s. 7 of the Charter incorporates the abuse of process doctrine, it does not extinguish the common law doctrine". The circumstances before me may, at least in theory, present one of those rare extra-Charter situations that both amount to abusive conduct and compel a remedy at common law. At this stage, however, I remain far from confident that this is the case.

[40] Before finding sufficient potential relevance to command production of the third party records on this second proposed basis, I shall need to be persuaded that a realistic possibility exists that, first, the conduct subject to the defendants' complaint can amount to justiciable abuse and, if so, that an intermediate remedy such as exclusion of evidence is available at common law; and that, if not, the abuse, if established, is so egregious or irreparable or otherwise offensive as to render this one of those "clearest of cases" warranting the draconian remedy of a stay of proceedings. It is here essential to recall that, irrespective of remedy, the standard for abuse of process recognized at common law must be established. As explained in R. v. Nixon, supra, at para. 38:

[I]n defining what constitutes a violation [amounting to abuse of process], it is important to recall what kind of harm the common law doctrine of abuse of process was intended to address and, in turn, why this degree of harm called for a stay of proceedings as the appropriate remedy. In other words, while s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused's fair trial interests or to the integrity of the justice system. [Emphasis in original] (See, also, O'Connor, supra, at para. 69.)

[41] Accordingly, I grant the defendants leave to recompose their abuse-premised production application and to advance it, if they choose, at the conclusion of the trial on its merits. As presently framed, I fail to see any cognizable basis for the defendants' claim and, accordingly, no foundation for the production order sought on the grounds of relevance to an alleged abuse of process.

(d) Credibility and reliability

[42] There is no doubt, as I have already observed, that, for production consideration purposes, an "issue at trial" includes not only the forensic narrative but, as well, "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case": O'Connor, supra, at para. 22; and McNeil, supra, at para. 33. But, as with every such claim, something more than a mere parroting of the threshold formula for "likely relevance" is required to crest the hurdle of production, even at the first stage. Again, as noted earlier, the distinction between the test for disclosure and the preliminary test for production must be borne in mind.

[43] Frankly, I find it difficult to extend any credence to the defendants' bald assertion that the targeted documents are "clearly relevant" since, as claimed, they relate to "whether the FLAP witnesses, in particular Mr. Mesure, are credible". No judicially condonable nexus of relevance is contained in this pronouncement with respect to Mr. Mesure and, as I read the record, even less so as regards any other FLAP witness. Doherty J.A., speaking for the Court of Appeal in R. v. B. (W.), 49 O.R. (3d) 321, at paras. 75 and 77, stressed that

[t]he mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value. . . . . .

The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value. In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant's statement will have some probative value in the assessment of her credibility.

B. (W.), while a very different case than the one before me, ultimately addresses the same common law framework for accessing third party records as applies here. Further, while no expectation of privacy need be asserted or assumed (McNeil, supra, at paras. 11-12), I infer, in any event, that FLAP, through its resistance to the motion, unsurprisingly asserts the confidentiality of its internal records. Accordingly, I see no principled reason to here depart from the broad reach of Doherty J.A.'s comments in that case.

[44] Much the same applies to the claim of relevance on the basis that the targeted documents will enable the defendants to determine "whether the FLAP data is reliable, as it was [sic] collected pursuant to an investigation, thus motivating, however subtly, the FLAP volunteers to interpret any ambiguities in the data in favour of the prosecution". I appreciate that the burden on the defendants at this stage, while "significant", is not "onerous". Nonetheless, on the tenuous reasoning advanced by the defendants I see no more than hope and conjecture grounding the claim of relevance on the basis of "reliability". The uncontradicted evidence called at this trial was consistently to the effect that Ecojustice's involvement and prosecutorial ambitions had no impact on the bird strike monitoring, recording and data collation of the FLAP volunteers. Mr. Mesure's responses to questions respecting FLAP's "evidence"-gathering role at the YCC afford some testimonial illustrations of this position:

Share. I think it would be more like "share" our findings, sir. And the "evidence" would be what would come from those collections. We did what we always did and we surrendered what information we gathered from our patrols to Ecojustice. . . . . .

We don't gather evidence per se, sir. Again, the data that we collect was never intended to be used in a court of law. . . . . .

This is what we'd be doing with or without a lawsuit, sir. This is what we would be doing. I just -- our volunteers and us carried on doing what we've always done

Defence counsel's immediate response to latter comment reads: "And I'm not suggesting otherwise."

[45] As said by the Supreme Court in O'Connor, at para. 24, the "relevance threshold, at this [first] stage, is simply a requirement to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming' requests for production". In my view, honouring this requirement commands dismissal of the defendants' application on the grounds of credibility and reliability. Any other result would permit an unwarranted fishing expedition.

E. Conclusion

[46] For the reasons set out, and but for the possibility of the single prospective exception earlier noted, the defendants' application for production is dismissed.

Order

Application dismissed.