WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: January 28, 2016

Court File No.: 15-01387-00 Newmarket

Parties

Between:

Her Majesty the Queen

— and —

T.G.

Ruling on Application to Cross-Examine Officer at a Preliminary Hearing Where a Claim of Crown/Police Solicitor-Client Privilege is Asserted

Before: Justice Joseph F. Kenkel

Date: January 28, 2016

Counsel:

• Ms. Joanne MacIntyre — counsel for the Crown
• Mr. Caolán Moore — counsel for the defendant

KENKEL J.:

Facts and Charges

[1] Mr. T.G. is charged with three counts of Sexual Assault s.271, three counts of Sexual Interference with a person under 14 s.151, and one count of Invitation to Sexual Touching with a person under 16 contrary to s.152 of the Criminal Code.

[2] The allegations date back to the period between January 1, 1999 and December 31, 2000. The defence is concerned about the delay and the events leading up to the laying of charges. The defence wishes to explore at this preliminary hearing whether there's any evidence of abuse of process. To that end the defence requested disclosure of emails between the York Regional Police and the Crown's office in relation to this case. Without conceding relevance the Crown provided the requested disclosure subject to redactions for solicitor-client privilege.

[3] The defence seeks to challenge the Crown's disclosure decision. While the defence concedes that this court has no jurisdiction to make orders in relation to disclosure (See: R. v. Girimonte, [1997] O.J. No. 4961 (C.A.), R. v. S. (S.S.), [1999] O.J. No. 1992 (S.C.J.)), the defence intends to call the officer involved in the email communications as a witness at the preliminary hearing. The defence will ask the officer about the redacted emails and that will trigger a claim of solicitor-client privilege. The defence submits that claim is an evidentiary issue and a preliminary hearing court does have jurisdiction to make evidentiary rulings including review of claims of privilege citing R. v. L.R., [1995] O.J. No. 1381 (CA) at para. 10. The Crown submits that the defence approach is an attempt to do indirectly what it cannot do directly and this court has no jurisdiction to engage in that review.

[4] The Crown has now closed their case. They submit that while the defence is permitted to call evidence at a preliminary hearing, the purpose of this hearing is limited by statute. The hearing should not be extended to evidence unrelated to the issue of committal.

The Scope of Evidence at a Preliminary Hearing

[5] The purpose of the preliminary hearing is set out in s.548(1) of the Criminal Code. The presiding justice must determine whether there is sufficient evidence to put the accused on trial for the offences charged or any other indictable offence in respect of the same transaction.

[6] "The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial." R. v. Hynes, 2001 SCC 82, [2001] S.C.J. No. 80 at para. 30. There is also a recognized ancillary benefit that the preliminary hearing will often serve as a discovery mechanism, but this discovery aspect remains incidental to the central mandate prescribed in s.548. R. v. Hynes at para. 30.

[7] While the preliminary hearing is focused on the charge screening function set out in s.548, the defence may cross-examine witnesses called by the Crown and is not limited to the issues raised in direct examination. R. v. L.R. at para. 11. In this way the defence may obtain discovery in relation to potential Charter or other issues at trial as an ancillary benefit to the preliminary hearing process.

[8] A preliminary hearing judge may rule on the admissibility of evidence. R. v. Hynes at para. 32. However, the preliminary inquiry is not a trial and the presiding justice has no power to grant remedies. "The justice cannot, for example, order the Crown to provide particulars or disclosure to the defence, stay proceedings for abuse of process, compel the production of third party records, or grant relief against informer privilege by recourse to the innocence at stake exception. (citations omitted) These powers are reserved for the trial judge." R. v. Hynes at para. 33.

[9] Section 541(5) directs a preliminary hearing court to hear witnesses called by the defence who testify, "to any matter relevant to the inquiry". The defence rarely calls any evidence at a preliminary hearing, although occasionally on consent a focused number of witnesses are called by the defence for discovery purposes. In some jurisdictions in this province such a request is accommodated by an agreed examination-for-discovery without a presiding justice as the evidence falls outside the mandate of the preliminary hearing. Discoveries have also been used for examination of Crown witnesses where committal is not an issue.

[10] In R. v. Kushimo, 2015 ONCJ 28 the court held at paras. 18-19 that the defence does not have a right to call witnesses at a preliminary hearing solely to obtain discovery of potential Charter or other trial issues. Witnesses for both the Crown and defence must be related to the charge screening purpose of the inquiry and the issue of discharge or committal.

Disclosure/Privilege Disputes at the Preliminary Hearing

[11] An application regarding evidence subject to a claim of Crown/police solicitor-client privilege was made at the preliminary hearing in R. v. Regan (Solicitor-Client Privilege Application), [1996] N.S.J. No. 624 (Prov. Ct.). The Justice questioned whether the application was simply an evidentiary issue regarding a privilege claim or whether it involved, "an illegal application for disclosure at the preliminary inquiry". That point was not resolved as the court held that there was no solicitor-client privilege as between the Crown and the police as a matter of law. That privilege was later recognized by the Supreme Court in R. v. Campbell, [1999] S.C.J. No. 16.

[12] In R. v. Murray [Evidence-Solicitor-Client-Privilege], [2000] O.J. No. 685 (S.C.J.) the court considered an application to quash an order made at the preliminary hearing that the portion of Paul Bernardo's communications with his lawyer that fell within the crime/fraud exception were not subject to solicitor-client privilege. The reviewing court noted that while a preliminary hearing court can make evidentiary rulings R. v. L.R. supra., solicitor-client privilege claims must of necessity succeed at the preliminary hearing stage as disclosure of the information would not lead to the discharge of the accused. R. v. Richards, [1997] O.J. No. 2086 (CA) cited in Murray at para. 82.

[13] A similar issue arose in Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722. In that case the defence asked the Crown to disclose police policy in regard to confidential informants. The Crown refused on the basis that the information was irrelevant and subject to privilege. The defence then obtained subpoenas duces tecum compelling police officers to attend and bring the information requested with them. The defence took the view that the documents weren't privileged and that the preliminary hearing judge had jurisdiction to make the evidentiary ruling on that point.

[14] The Court of Appeal thought it important to rule on this point even though it had become moot prior to their judgement. They held that the subpoenas were properly quashed by the Superior Court. Orders for disclosure are to be made only by the trial court. OPP at paras. 109-113. It is not open to the defence to use their right to call witnesses at a preliminary hearing to circumvent disclosure rules, recasting disclosure, third party records and privilege issues as simply an evidentiary ruling on privilege. The court found the appellants were attempting to do indirectly what they couldn't do directly (OPP at para. 117) and emphasized that jurisdiction over disclosure issues rests solely with the Superior Court of Justice where the accused has elected trial in that court.

Analysis

[15] The court in Murray noted at para. 91 that the statutory right at a preliminary hearing to cross-examine witnesses called by the Crown does not supplant solicitor-client privilege claims. The accused's right to make full answer and defence did not justify the disclosure of communications subject to privilege claims at the preliminary hearing stage. The Murray approach is consistent with the purpose of the preliminary hearing as subsequently affirmed by the Supreme Court in Hynes and R. v. S.J.L., 2009 SCC 14 and is consistent with the Court of Appeal's direction in OPP v. Thunder Bay.

[16] The defence has conceded that the cases show the preliminary hearing is not the appropriate forum in which to apply to pierce solicitor-client privilege. As an alternative the defence submits that if the police witnesses are called and assert privilege then the court may hear the parties, review the redacted emails and determine whether privilege applies. If it applies that will end the matter at this stage. If it's found not to apply then there's no privilege issue and the questioning may continue.

[17] Despite the ingenuity of this novel submission, in my view the defence application still is based on a challenge to the Crown's disclosure decision. That engages issues of relevance, solicitor-client privilege and the law governing third party records applications. Should the accused be committed to stand trial, the trial court is the appropriate forum for that application. Further, judicial review of police/Crown solicitor-client communications is itself an intrusion on the claimed privilege, unwarranted in a proceeding where that exercise can have no bearing on the issue before the court.

[18] I should add that even if this court had jurisdiction to proceed in the manner submitted by the defence and it were otherwise appropriate to do so, there's also a practical concern related to this court's responsibility to regulate the inquiry pursuant to s.537(1)(i) in a manner consistent with the Act. To permit the evidentiary investigation contemplated by the defence would engage an assertion of privilege by the holder – the York Regional Police. Counsel for the York Regional Police has already attended court in that regard. Litigation of the disclosure/privilege dispute involving a third party might well expand this hearing beyond its scheduled time for no purpose related to the charge screening task the court is required to perform.

Conclusion

[19] The application is dismissed.

Reasons Delivered: January 28, 2016

Hon. Justice Joseph F. Kenkel