Court File and Parties

Ontario Court of Justice

Date: 2018-09-05

Court File No.: Brampton 3111 998 16 7242

Between:

Her Majesty the Queen

— and —

Mark Sodja

Before: Justice G.P. Renwick

Heard on: 05 September 2018

Reasons for Judgment released on: 05 September 2018

Counsel

• D. Spence — counsel for the Crown
• N. Stanford — counsel for the defendant Mark Sodja
• A. Iafrate — counsel for the Ontario Provincial Police

Judgment

RENWICK J.: (ORALLY)

Introduction

[1] The Applicant Defendant has brought a third-party records application to seek use of force reports, training materials, and policy documents in the possession of the Ontario Provincial Police with respect to the use of force and specifically the use of conducted energy weapons. The prosecution and the Ontario Provincial Police have conceded the need to disclose the actual use of force reports involving Constable Maquire and the Applicant, but they oppose the remainder of the Application on different grounds.

[2] The prosecutor submits that the Application is premature, absent a finding that the arresting officer used excessive force in this case, thus breaching the Applicant's Charter rights. At the inquiry under s. 24(2) these materials may be likely relevant in terms of the bona fides of the officer and the seriousness of the Charter infringing conduct.

[3] Counsel for the police service opposes the Application for failing to suggest the likely relevance of the materials sought and because the materials cannot assist the Applicant in establishing a violation of his constitutionally protected rights. The Applicant can do no more than speculate that the materials sought may assist in bringing a Charter application. This Respondent submits that the arresting officer's conduct must be assessed on its own without regard to training or policies which may or may not have been Charter compliant, or even followed by the arresting officer on the day in question.

[4] The Applicant submits that the materials sought are likely relevant at trial in the context of a possible Charter application for a stay of proceedings or the exclusion of evidence on the basis of the police use of excessive force. Though the Applicant stresses there are two distinct items being sought, the Applicant concedes that the argument for production is the same in respect of both the training materials and the policies requested. The Applicant requires these items to determine whether or not to bring a Charter application at trial, and to advance same.

Discussion

[5] At the first stage of this Application, the Court must determine whether the materials sought are "likely relevant." If the materials are likely relevant, they must be produced to the Court to determine whether or not they ought to be produced for disclosure prior to trial.

[6] Justice Watt eloquently discusses "relevant" and "relevance" in Jackson:

The terms "relevant" and "relevance" are old friends of the law of evidence. Familiar faces. Constant companions. We know them well enough to say several things about them without being critical in any way.

Relevance is not a legal concept. It is a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence. Some have it. Others lack it.

Relevance is relative. It posits a relationship between an item of evidence and the proposition of fact the proponent of the evidence seeks to prove (or disprove) by its introduction. There is no relevance in the air: R. v. Luciano, 2011 ONCA 89, at paras. 204-5.

Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel. Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise: R. v. Cloutier, at p. 731.

The law of evidence knows no degrees of relevance, despite the frequent appearance of descriptives like "minimally, marginally or doubtfully", "tangentially" and "highly" that tag along for the ride from time to time.

[7] The Court of Appeal in Jackson also clarifies what is meant by "likely relevance":

The standard "likely relevant" imposes a significant, but not an onerous, burden on an applicant: O'Connor, at para. 24; McNeil, at para. 29. This threshold plays a meaningful role in screening applications to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming requests for production: R. v. Chaplin, at para. 32; O'Connor, at para. 24; McNeil, at para. 29.

The "likely relevant" threshold is not onerous because an applicant cannot be required, as a condition of accessing information that may assist in making full answer and defence, to demonstrate the specific use to which they might put information that they have not seen: R. v. Durette, at p. 499; O'Connor, at para. 25; McNeil, at para. 29. The trial judge does not balance competing interests to determine whether the "likely relevant" threshold has been met under O'Connor: McNeil, at para. 32.

Under the third party/ O'Connor production regime, "likely relevant" means that there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify: O'Connor, at para. 22; McNeil, at para. 33. An "issue at trial" includes not only material issues concerning the unfolding of the events which form the subject-matter of the proceedings, but also evidence relating to the credibility of witnesses and the reliability of other evidence: O'Connor, at para. 22; McNeil, at para. 33.

[8] As a final guide, Watt J.A. held:

[T]he applicable standard in the third party/ O'Connor production regime is more demanding than the "whether the information may be useful" criterion for first party/ Stinchcombe disclosure. That a more stringent standard applies is consonant with the underlying policy considerations and the gatekeeper function assigned to the trial judge.

[9] I have carefully considered the submissions of all parties and the caselaw provided. For the following reason I am persuaded that the Applicant has met its burden at the first stage to show that the policies of the Ontario Provincial Police governing the use of force and conducted energy weapons are likely relevant to an issue at the defendant's trial.

[10] The actions of the arresting officer are relevant in prosecuting and defending the charges before the Court. The fact that the officer used force in the context of the arrest is unusual, although I do not mean that in a critical way. It may turn out that the force used was entirely appropriate. What I mean to say is that this is not an ordinary drink/driving prosecution where the materials sought would be clearly irrelevant.

[11] If the arresting officer failed to comply with the policies of his police service, this is relevant, though not necessarily determinative on the issue of whether or not the force he used to effect the Applicant's arrest was reasonable. If the police service prohibits the use of a conducted energy weapon in the circumstances of this case, the policy has undoubted relevance in any determination of the reasonableness of the force used. Whether or not the arresting officer complied with any appropriate policies or directives is critical information that bears on the reasonableness of the officer's actions. For this reason, likely relevance is made out.

[12] With respect to the training materials, the opposite is true. Several cases produced during argument make the point that training is irrelevant in a consideration of whether or not police action is constitutionally suspect: see R. v. R.W., [2018] O.J. No. 1486 (S.C.J.), R. v. Beaver, 2016 ONSC 664, among others. The point is, the officer's actions stand or fall on their own. If an officer's training is lacking, this may go towards the officer's bona fides but her conduct must still be evaluated for its reasonableness in all of the circumstances of the case. As well, a failure to comply with one's training is not necessarily dispositive of the question of the reasonableness of the officer's actions. Training is only a guide. There are likely exceptions to any best practise dependent on the circumstances at play in a given situation. I find that there is no likely relevance established for the provincial police training materials for the use of force and conducted energy weapons.

[13] Obviously, this order does not preclude cross-examination on the issue of training or training materials or the development of relevance of these items to an issue during the trial.

Conclusion

[14] I am ordering the Ontario Provincial Police to produce to the Court its policies concerning the use of force and conducted energy weapons. I will assess the materials provided and determine if they ought to be produced for disclosure to the Applicant.

Released: 05 September 2018

Justice G. Paul Renwick

Footnotes

[1] R. v. McNeil, 2009 SCC 3, at para. 7.

[2] R. v. Jackson, 2015 ONCA 832.

[3] Ibid., at paras. 127-129.

[4] Jackson, supra, at para. 138.