Court File and Parties

Ontario Court of Justice

Date: 2018-01-19

Court File No.: Brampton 3111 998 2017 8743

Between:

Her Majesty the Queen

— and —

Ahmed Jama

Before: Justice G.P. Renwick

Heard on: 17, 18 January 2018

Reasons for Judgment on the Application released on: 19 January 2018

Counsel

T. Kim — counsel for the Crown

D. Rechtshaffen — counsel for the defendant

S. Wilmot — counsel for the Peel Regional Police

Application for Disclosure

RENWICK J.:

Introduction

[1] During the defendant's trial for unlawful possession of a loaded firearm, counsel for Mr. Jama brought an application for disclosure of the following items:

i. A statement given by the complainant who filed a public complaint of unlawful detention and excessive use of force against Constable Darrell Corona arising out of an unrelated incident that is alleged to have occurred two months after the allegations before the court, in April 2017;

ii. A statement given by Constable Darrell Corona in response to the above-mentioned complaint;

iii. Any other witness statements taken during the investigation of the above-mentioned complaint; and

iv. Any video evidence gathered during the investigation of the above-mentioned complaint.

[2] Counsel for the defendant submits that the requested disclosure is not clearly irrelevant because it involves strikingly similar facts, the disclosure may demonstrate a police pattern of disregard for the Charter, the information can be used to cross-examine the main police witness, the information is required to make full answer and defence, the material is relevant to a s. 24(2) Charter analysis, and the disclosure is already in the possession of both the witness, and his employer, the Peel Regional Police.

[3] The prosecution and counsel for the police service both oppose the application. The prosecutor submits that the requested information is a third-party record to which strong privacy interests attach, the prosecution has complied with the disclosure requirements articulated in R. v. McNeil, 2009 SCC 3, and the applicant has failed to file a third-party records application. Counsel for the police service also relied on McNeil and opposes the application in light of the failure of the applicant to bring a third-party records application. Counsel for the police concedes possession of some of the investigative brief, but submits that the Office of the Independent Police Review Director ("OIPRD") is the investigative agency with control of the entire investigative brief to whom the third-party application should be directed. Also, police counsel concedes that the requested material may have relevance at the remedy stage of the Charter application, if that application succeeds, during the s. 24(2) Charter analysis.

[4] In response, the Applicant submits that the requested information is first-party disclosure, pursuant to McNeil, but regardless, both the police service and the OIPRD are Crown agencies, and fairness to the witness requires that his actual statement, rather than a synopsis or summary be used during cross-examination.

The Law

[5] The starting point for disclosure to a defendant is the duty of a prosecutor who must make available the fruits of an investigation, whether inculpatory or exculpatory, subject to any claims of privilege: see R. v. Stinchcombe. The investigative brief is referred to as first-party disclosure, because it resides with the investigating agency, which must turn over this material to the prosecution for disclosure to the defendant: (McNeil, at paras. 14, 15, 17, 18, 22, 23, 24, 52, and 53-59).

[6] At law, police agencies not involved in the instant investigation and other Crown departments are distinct and separate entities from the prosecution and do not owe the same duty to produce their records to the prosecuting authority: (McNeil, at paras. 13, 22, 25, and 48). For this reason, records held by other police or Crown agencies are governed by the third-party disclosure regime created by the Supreme Court of Canada in R. v. O'Connor: (McNeil, at paras. 11, 22, and 47; and R. v. Jackson, 2015 ONCA 832 at paras. 80-83).

[7] Production of police disciplinary files or investigations, generally, are governed by the O'Connor regime as third-party records: (McNeil, at para. 15). However, records relating to findings of serious misconduct by police officers involved in the investigation against a defendant properly fall within the scope of first-party disclosure where the misconduct is either related to the investigation involving the defendant or the finding of misconduct could reasonably have an impact upon the prosecution or defence of the defendant: (McNeil, at paras. 15, 54, 57, and 59).

Analysis

[8] There is a tension between the prosecutor's duty to disclose all material in the possession of the investigating authority which is not clearly irrelevant or privileged, the right to make full answer and defence, any privacy interests of the subjects of third-party or police discipline records, and the orderly management of the defendant's trial that ought not devolve "into a conglomeration of satellite hearings on collateral matters:" (McNeil, at para. 45). I must determine the appropriate mechanism for disclosure of the records sought, whether any applicable prerequisites are met, and if there must be any balancing of countervailing interests prior to ordering production.

[9] I note that both the prosecutor and the applicant's counsel share some mutual interest in discovering material which may benefit the defendant, as well as an "interest in discovering the existence of an unreliable or unethical police officer:" (McNeil, at paras. 13 and 50). To be clear, I have not made any findings of police impropriety, however, given the Charter application and the thrust of the cross-examination of Constable Corona to this point, it is obvious that the applicant is not simply alleging police negligence or mere inattention to constitutional standards, but rather the applicant alleges a completely inappropriate investigation involving an unjustified and arbitrary detention for the purpose of conducting an unlawful search.

[10] In this case, I have been advised that the prosecutor has disclosed the synopsis or a summary of the public complaint made against Constable Corona, the two charges he faces, and the fact of a hearing date, which has been set. Given that some disclosure of the police misconduct has been made, I must determine whether the disclosure requested ought to be ordered and if so, which production regime, first-party or third-party (Stinchcombe or O'Connor, respectively) applies.

[11] At paragraph 57 of the McNeil decision, the Supreme Court endorsed five areas as first-party disclosure identified by the Honourable George Ferguson, Q.C., in his January 2003 report, "Review and Recommendations Concerning Various Aspects of Police Misconduct:"

a. Any conviction or finding of guilt under the Canadian Criminal Code or the Controlled Drugs and Substances Act [for which a pardon has not been granted];

b. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act;

c. Any conviction or finding of guilt under any other federal or provincial statute;

d. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act; and

e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

[12] The applicant submits that the disclosure of Constable Corona's charges under the Police Services Act, which stem from a situation not dissimilar to the one giving rise to the defendant's charges, have a bearing on the officer's credibility for the determination of the Charter application concerning the detention, arrest, and the search of the defendant and his rental vehicle, incidental thereto. It is argued that disclosure of material relating to the officer's charges of misconduct is first-party disclosure.

[13] After consideration of all of the submissions and the cases presented, I conclude that the prosecutor has met its first-party, Stinchcombe disclosure obligation by provision of the charges, the summary, and the fact of a hearing. The material sought by this application goes beyond what is in the possession of the prosecutor, or that which she ought to reasonably request in accordance with McNeil at paragraphs 49 and 50. I come to this conclusion for the following reasons.

[14] First, McNeil is silent about the content of the first-party rule respecting current charges of police misconduct. I note that disclosure of a conviction would seem to satisfy the rule, without the necessity to disclose the investigative brief underlying the conviction. From a collateral fact rule standpoint, this makes sense and avoids unnecessary inquiries that might prolong cross-examinations on unrelated matters. Similarly, there is no rationale that would justify greater disclosure respecting outstanding charges than that required where convictions have been entered. After all, while the charges have yet to be litigated the witness is still presumed to be innocent. If the purpose of seeking this disclosure is to assist the trier of fact in assessing the credibility of a police witness, little can be gained beyond pointing out the character deficiencies revealed by a criminal or quasi-criminal record, or outstanding charges. At some point there is a law of diminishing returns the further into unrelated matters a cross-examination ventures.

[15] This leads to a related rationale respecting trial management and litigating matters that need not be re-litigated or raised during the defendant's trial. If there were no limit to the cross-examination of a police witness on other charges or findings of misconduct, query what right of re-examination the prosecutor would have to adduce evidence to exculpate the witness, and even the possibility of incongruent findings by the trial court respecting an earlier court or tribunal's decision.

[16] Lastly, what privacy, privilege, fair trial rights, or other public interests are at stake where, as here, a court could require disclosure of an on-going investigation and prosecution involving both the complainant's and the defendant's statements. Without hearing from the OIPRD, counsel for Constable Corona, and the private complainant, I am unable to determine the expectations of privacy and the implications disclosure may have upon an on-going prosecution and defence of those unrelated allegations. The disclosure sought is distinctly different from the case where an officer has already received the benefit of due process by an impartial arbiter. Constable Corona is still presumed innocent of any wrong-doing and his fair trial rights must be considered. The third-party disclosure regime is the appropriate mechanism to hear from all stakeholders affected by the potential disclosure order so that a proper balancing of interests can occur. Indeed, the O'Connor regime requires that all parties with an interest in the production application be served, precisely so that divergent interests will properly be assessed before a disclosure order with the potential to disproportionately affect other parties takes place: (McNeil, at sub-paragraph 27(2)). At the very least, the third-party process will ensure that necessary steps can be taken (redactions, for instance) to protect privacy interests in the event of production of third-party records.

[17] As a postscript, it is worth noting that the applicant has enjoyed a thorough cross-examination of Constable Corona on the basis of what has already been disclosed. It is always difficult to imagine the purposes to which unproduced material can be put in making full answer and defence, but there can be no argument at this stage that the lack of this material has hindered Mr. Jama's defence.

Conclusion

[18] In the absence of a proper third-party records application, with evidence, served upon all interested parties, I am unable to determine any privilege that may attach to the material sought, the likely relevance of these items, and whether, and to what extent, production should be ordered. As a result, this application is dismissed.

Released: 19 January 2018

Justice G. Paul Renwick

Footnotes

[1] Argument on the application began before the taking of evidence on the trial and concluded during the cross-examination of the main prosecution witness, at the start of the second day of the trial.

[2] Initially, counsel for the applicant sought disclosure of the entire investigative brief of the public complaint against Darrell Corona. By the conclusion of the submissions, only the above-noted items were sought.

[3] There has been no evidence adduced on this application.