ONTARIO COURT OF JUSTICE DATE: January 8, 2021
BETWEEN:
C.S.
— AND —
HER MAJESTY THE QUEEN
Before Justice B. Green
Defence Application for the Recusal of the Trial Crown
Heard on January 6th and 7th, 2021 Reasons for Judgment released on January 8th, 2021
Mr. P. Murray as counsel for the Crown on the application Mr. R. Rusonik as counsel for the defendant
Green J.:
A. Introduction
[1] In advance of the commencement of the trial, counsel and the assigned crown diligently filed extensive application and responding materials. In addition to putting the crown to its burden of proving the allegations against Mr. S. beyond a reasonable doubt, counsel gave notice that he is seeking a stay of proceedings for two different reasons:
- That the proceeding should be stayed due to an abuse of process as a result of alleged police misconduct in relying on a racist statement and/or stereotype in an escort advertisement during the course of an investigation; and
- That the police conduct during this investigation amounted to entrapment.
[2] Considering the voluminous materials that were filed while I was away on Christmas vacation, I began reviewing them at home. Far too much court time is wasted on the first day of trial sorting out procedural issues and court time is a precious commodity in this new pandemic era. As a result, I took the unusual step of seeking some clarification from counsel and the crown via email through the trial coordinator with respect to how they anticipated proceeding with this matter, whether the trial would be a blended hearing and whether there was sufficient time set aside considering the complexities of the issues in this case.
[3] I asked the trial coordinator to attach that email to the information since it should form part of the record.
[4] Counsel promptly responded to all my queries and explained that this matter had been extensively pre-tried twice. Counsel and the crown intended to present an agreed statement of facts, there were to be some admissions and concessions, they also agreed to an order for the presentation of evidence and the trial was to proceed in a blended fashion. It is evident that the assigned crown has devoted a lot of time and effort to this prosecution and that counsel and the crown had a constructive and positive working relationship.
[5] Counsel’s response initially allayed my concerns about only 3 days being set aside for this matter. However, within that same response, counsel also advised that, as a result of new disclosure, he intended to bring this application to recuse the assigned crown because he is seeking to call her as a witness on the application for an alleged abuse of process.
[6] On the first day of the trial, the assigned crown sought summary dismissal of the recusal application. I ruled that the application had merit and that I would hear evidence and submissions. Since the application involved a local crown, I asked counsel and the crown whether they wished to have the matter heard in front of an out of town jurist. Both counsel and the crown agreed that I could hear this pre-trial application and that they were not concerned with any perceived conflict of interest.
[7] Counsel and the assigned crown provided a significant amount of materials explaining the background leading up to this issue. Considering the focus of this application is what, if any, role the assigned crown played in a discreet aspect of the investigation that is the subject of the abuse of process motion, I raised the issue of propriety of the assigned crown appearing as counsel on the application. The assigned crown submitted that, while it is not ideal for the subject of an application to be advocating its merits, it is not prohibited. The assigned crown’s position was understandable in light of the last-minute nature of this application and the challenges of trying to find another crown who could step in on short notice with enough time to be prepared to address the Court on this issue.
[8] We initially proceeded with the assigned crown, but in response to some defence submissions and my queries, the crown made statements of fact. It was evident to me that we could not proceed without the assigned crown unintentionally blurring the lines between submissions and giving evidence about the issues for me to decide on this application. I ruled that the assigned crown could not address me as both a witness and an advocate on this application. Fortunately, the assigned crown secured the assistance of Mr. Murray, the Deputy Crown in Durham. We were able to continue with the application on the second day of the scheduled trial dates. I am very grateful for Mr. Murray’s able assistance.
B. The basis for the motion
[9] It is essential to provide the background of disclosure requests and correspondence between counsel and the assigned crown to contextualize why a single entry in an officer’s notebook that was disclosed days before the scheduled trial has derailed all the carefully crafted plans with respect to the trial proceedings.
[10] The focus of the abuse of process application is the wording used in a fictitious escort advertisement that was part of an undercover operation to arrest individuals who engaged the services of underage prostitutes. It is alleged that Mr. S. responded to this particular ad and committed the offences before the court.
[11] I have reviewed the information and all the attached documents. Mr. S. was arrested on May 9th, 2019. He immediately retained counsel since a designation was signed on May 22nd, 2019. The designation predated his first court appearance of June 4th, 2019. Mr. Rusonik appeared on that date as counsel and the matter was adjourned to June 25th. On the second appearance, a pretrial was scheduled for August 23rd, 2019.
[12] Prior to the pre-trial, counsel began corresponding with the assigned crown seeking disclosure and outlining issues that may be raised during the pretrial. Counsel gave the crown very early notice that he was contemplating bringing an application for an abuse of process because of some offensive and racially charged language that was used in the fake ad. In the ad, there was a description of the escort as well as point form descriptions of services, prices, qualities and a statement “no black gents”. Throughout these reasons, I will refer to “no black gents” as the impugned phrase.
[13] I will not address the merits of the abuse of process application at this stage of the proceedings because it would be premature. I have not heard the evidence of the expert witness counsel intends to call, the other witnesses or fulsome submissions. The sole issue for me to decide is whether a meeting between the assigned crown and the investigating officer in the investigative planning stages has made her a compellable witness in counsel’s application to stay the proceedings as an abuse of process. If I decide that she can be called as a witness, she will not be permitted to appear as crown counsel during the trial.
[14] In order to present an evidentiary foundation for the abuse of process motion, counsel wants to examine the reasoning behind the maker of the advertisement’s choice to employ this specific investigative technique of including a racially charged reference. Accordingly, it is essential, from the defence perspective, to examine the person or persons who made the decision to include this reference in the advertisement and why that person chose to include it.
[15] On August 22nd, 2019, counsel advised the assigned crown that this matter would be going to trial. On that date, counsel and the crown exchanged emails about obtaining disclosure and narrowing the focus of the trial to the disputed issues. I will only refer to excerpts of the emails that relate to the impugned phrase. Counsel and the crown had the following exchanges about that phrase in a series of emails (exhibit L):
Counsel: I’m also not sure yet what I’m going to do about the ad excluding black men. It may simply be disgusting on the part of the police, as opposed to an abuse of process, but I’m going to think more about it.
Crown: Haha ‘black gents’ is HT for ‘pimps’! I confess I had to look it up myself when I first came across the term.
Counsel: I don’t think you’re making things better with that explanation, Mareike, although I don’t know what ‘HT’ means.
Crown: Sorry Reid, I do a lot of these cases – HT is ‘human trafficking’. ‘Black gents’ is very commonly seen in escort ads. That you don’t know that is a good thing. It’s still racist (perhaps even more so) but it’s basically ‘street lingo’ to legitimize the ad and make it appear genuine.
[16] On August 23rd, 2019, counsel and the crown participated in a judicial pretrial. The presiding jurist noted in the judicial pretrial form that disclosure was not complete. The issue of the application for abuse of process with respect to the wording of the ad was raised during the pretrial because the form indicates in brackets that there will be two issues for the trial “(entrapment, AD – charter re the ad)”.
[17] Counsel followed up with the crown after the pretrial and specifically requested disclosure of information about who drafted the wording of the advertisement used in this investigation. He sent correspondence to the crown on August 25th, 2019, and again on August 26th, requesting the name of the author of the advertisement as well as other disclosure. It should be emphasized that counsel was requesting disclosure of who authored the advertisement or drafted it, not a general explanation of why the impugned phrase was included in the advertisement (exhibits A and L). Counsel queried:
What I did not ask but ask now is the officer—if it was an officer—who wrote the advertisement to which Mr. S. responded. I will send you a formal request for this disclosure tomorrow.
[18] On September 18th, 2019, (exhibit B) the assigned crown responded to counsel’s various requests for disclosure and, with respect to the issue of who added this reference to the advertisement, the crown replied: “I will make inquiries as to who ‘wrote’ the advertisement.”
[19] On October 2nd, 2019, (exhibit C) the crown e-mailed counsel again and answered the query about why the refence was included and who included it:
Please find attached further disclosure in this case, namely a brief explanation of the meaning of the term 'black gents',
And further on:
In response to your additional queries, please be advised as follows: The original ad was authored by DC Chapman. [emphasis mine]
[20] The will-state that was attached to the crown’s email was written by DC Chapman. It was dated September 19th, 2019 (exhibit D) and explained that he prepared this supplemental report because “on September 18th, 2019, DC Connelly received an email and the term no Black gents”. I infer from this entry that the crown diligently followed up with counsel’s request for disclosure to find out who authored the ad.
[21] DC Chapman detailed in this will-state why the impugned phrase “may seem racist but it is the complete opposite” and why, in his experience, it is used in advertisements in the sex trade industry. Notably absent from his will-state was the answer to counsel’s question as to who made the decision to include the impugned phrase in the advertisement in this case.
[22] While who made an investigative decision with respect to the wording of a fake ad may not be relevant in the majority of cases, in the unique circumstances of this case, counsel explained right from the start of his correspondence with the crown why it was relevant evidence. Counsel has a right to know the case to meet and he was entitled to know who made that decision so that he can examine that person about his or her reasoning to include that phrase.
[23] While the crown’s email said DC Chapman authored the ad, there was no reference in DC Chapman’s will-state that he authored it or that he participated in any way in drafting it. As a result, contrary to the crown’s email stating that DC Chapman authored the ad, the will-state was unresponsive to counsel’s query about who made the decision to include the impugned phrase.
[24] This matter was scheduled for trial in the middle of June of 2020. Counsel still did not have the answer to the specific question about who drafted the ad. The trial could not proceed in any event as a result of the forced closure of the courts due to Covid 19 and it had to be rescheduled.
[25] On August 4th, 2020, the assigned crown communicated with counsel again about the issue of who drafted the ad. (exhibit E) This email was sent almost a year after the first pre-trial and counsel’s initial request for information about who authored the advertisement. It was sent 10 months after the crown advised counsel that “it was Officer Chapman” who authored the advertisement. In this email, the crown provided new disclosure of a will-state written by another officer, DC Bint, in an attachment.
[26] The email from the crown on August 4th, 2020, provided new information about “who” drafted the ad:
Please find attached a report / will-say from Officer Bint, which was prepared some time ago but did not make its way to me until recently (the police thought it had already been disclosed). As I have only recently learned from reviewing this report, Officer Bint was the one responsible not only for posting the ads in the second ‘wave’ of Project Chestemere cases, but also for coming up with some of the wording. The wording of the ads was reviewed by Officer Chapman, who has already provided an explanation of the rationale for including the words ‘no black gents’ (per the previously-disclosed will-say). As I may already have forecast at our most recent Judicial pre-trial, I anticipate calling Officer Bint to explain the process, either instead of or in addition to Officer Chapman.
[27] The will-state from Officer Bint (exhibit F) provided further information:
The following report outlines how the LeoList account was created and an advertisement was posted.
On May 6th, 2019, I browsed LeoList.CC which is a website commonly used for posting sexual services for sale. I familiarized myself with advertisements in the Durham Region and Greater Toronto area. I browsed the website in the other classified areas on LeoList such as vehicles for sale, pets, miscellaneous items, jobs, housing and there were no advertisements in these areas. The only place I saw advertisements were in the personals/escort section of the website. I am also familiar through speaking with victims that sexual services are posted on LeoList.CC. I familiarized myself with the lingo and wording used in the titles and body of the advertisements. I chose wording based on viewing ads such as “In call” meaning sexual services done at the escort’s location. Based on prior underage victim’s advertisements and making contact with underage females through LeoList advertisements, I utilized words such as “tight”, “Petite” and “new”. I chose the pricing based on viewing different rates on the advertisements. The prices range from $140-$240 an hour. I was also previously familiar with LeoList.CC prior to this date from my training and prior experience in the Human Trafficking Unit.
[28] This will-state clarified that it was actually DC Bint who drafted at least part of the ad based on his police experience investigating this type of crime and reviewing similar ads. However, DC Bint’s report did not make any reference whatsoever to the inclusion of the impugned phrase or why it was added to this advertisement. He also did not mention what, if any, role DC Chapman played in the drafting or reviewing of this particular ad. As a result, I do not know from whom the assigned crown obtained the information that the ad was “reviewed by Officer Chapman”. I am not aware of any will-state or evidence to that effect. As of August 4th, 2020, when the crown sent this email, counsel still had no answer to the very simple question of who decided to put the impugned phrase in the ad.
[29] As an aside, DC Bint’s report relates to investigative steps that were taken on May 9th, 2019 but it was not prepared until October 21st, 2019 presumably as a result of the crown’s inquiries seeking to respond to the disclosure request about who drafted the ad. I do not understand why it took a further 10 months to disclose this will-state despite specific requests for this information. This untimely disclosure was described by the assigned crown as an oversight.
[30] In September, this matter was scheduled for a 3-day trial to commence in front of me on January 6th, 2021.
[31] On December 4th, 2020, counsel served and filed the formal notice of application stating that “the prosecution would be an abuse of the court’s process in that it was initiated through use by the police of an advertisement that included a racist slander against black Canadians”. The crown filed a response on December 23rd, 2020, including a statement at paragraph 4 that:
The advertisement also featured the expression ‘no black gents’, which is frequently used in the sex trade. This expression has a very specific meaning in that industry and is recognized as a signal that the worker being advertised is – and wants to remain – ‘independent’ (i.e. not controlled by a ‘pimp’).
Anticipated evidence of DC Jordan Bint and DC Brad Chapman
[32] On December 24th, 2020, Christmas Eve, PC Chapman authored a new will-state once again addressing why the impugned phrase is used in the sex trade industry even though “for someone who is not involved or investigating the sex trade it may look like a racist comment” (exhibit H). He ended his will-state with:
I can’t comment if these facts are true or not just this is the information I was provided
When designing this project, it was added to the advertisement to fit in with other ads and not be detected as being a police officer
[33] During the assigned crown’s submissions, she advised that she requested that the investigating officer prepare this supplemental report which had similar content to the will state previously drafted by DC Chapman (exhibit D). However, the language in this supplemental will state is equally ambiguous about who, specifically, made the decision to include the impugned phrase in the advertisement. DC Chapman used a passive reference that “it was added” not he added it or whoever added it to the advertisement.
[34] On December 31st, 2020, New Year’s Eve, a week before the trial was scheduled to begin on January 6th, 2021, the Crown provided counsel with new disclosure of notes prepared by Officer Chapman about this issue. (Exhibit G) The email appended the new disclosure and stated:
Finally, I have attached two additional documents:
- A recently prepared will-say from DC Chapman re: the language issue and containing some statistics on HT arrests. The statistics were compiled by him just to illustrate that juvenile prostitution is a significant problem from the perspective of the police, which is something I wish to highlight on the entrapment issue.
- Memo book notes of DC Chapman – these should have been disclosed earlier but by oversight they were not – my apologies, as I only just realized this.
[35] Although the late disclosure is not the subject of this application, it is very disconcerting and resulted in counsel seeking recusal of the crown.
[36] DC Chapman was called as a witness during this application. I accept DC Chapman’s explanation that the notes from April 8th, 2019, do not have the Applicant’s name. Even though he had been asked to provide details in this case about who added the impugned phrase and why, he did not review the notes from April until preparing for the trial and that is when he made the connection. As soon as he made the connection between the notes and the issues in this case, he emailed them to the crown. While it was very late in the process, I accept that the notes were not either intentionally or maliciously withheld or that DC Chapman realized how important the contents of the notes may have been to counsel’s abuse of process application in this case.
[37] The officer’s notes detailed a meeting between Officer Chapman and the assigned crown that took place on April 8th, 2019, before Mr. S. was even arrested. The notes summarized the perceived necessity of the inclusion of the impugned phrase and of a subsequent telephone call between the officer and the Deputy Director of the Ministry of the Attorney General, on April 16th, 2019, where they also discussed the planned investigation. These notes (Exhibit I) are as follows:
April 8th, 2019, 1:30 pm: Meet with [the prosecuting crown] re project and discuss issues and plan. Plan is to advertise on LeoList as this is the main website used by victims of sex trade. Multiple victims have told me that is the most popular site to attract ‘Johns’. Multiple victims have revealed to me that they have tried to be recruited by a pimp off LeoList. This is the main reason that most victims put in their ad no black gents. They find this sometimes keeps pimps away.
April 16th, 2019, 12:05 pm: Receive call from [the deputy director] re case and go over plan.
[38] These notes are compelling evidence that, in April of 2019, D.C. Chapman met with the assigned crown and discussed this project and the investigative plan including adding the reference of the impugned phrase.
[39] I have attached the copy of the notes as appendix A to these reasons because it is important to see how they were recorded. There is one date and one-time entry of 1:30 p.m. at the start of the notes. The notes are written in one seemingly continuous entry. There are no breaks in the entry or separations in the sentences. The notes have similar wording throughout and appear to be one singular entry summarizing the contents of a meeting that the officer had with the assigned crown about this investigation. An informed and reasonable inference from these notes is that DC Chapman made the decision to include the impugned phrase after consulting with the assigned crown.
[40] Reviewing DC Chapman’s April 8th notes together chronologically with DC Bint’s will state, another possible inference is that on April 8th, 2019, DC Chapman made the decision to add the impugned phrase. One month later, on May 9th, DC Bint drafted the balance of the information that was included in the advertisement. Reading these two documents together, it could explain why DC Bint made no reference to the impugned phrase in his comprehensive will-state about the contents of the ad. However, I am not aware of any notes or reports that confirm DC Chapman reviewed the ad or that he communicated with DC Bint about the inclusion of the impugned phrase in the ad.
[41] These police notes inform what role each officer played in the preparation of the advertisement and were fairly interpreted by counsel as alluding to an assistant crown attorney being involved in this aspect of the investigative planning. Counsel is not suggesting that there is anything wrong with such a meeting or that it is inappropriate for a crown to provide advice and direction to investigating officers. Rather, counsel has been asking for almost 1 ½ years now who made the decision to add the impugned phrase and these notes suggest that PC Chapman made that decision in consultation with the assigned crown.
[42] Counsel only received these notes after he had already served and filed his application about the abuse of process. As a result of disclosure received 6 days before the trial, the focus of the application, from counsel’s perspective, has expanded from alleged police misconduct to malfeasance by the crown. In the application to remove the crown, counsel submitted:
The abuse of process would be even greater, however, if another agent of the state, the Attorney-General, knew about the police plan to include the trope and either directly condoned doing so or did so indirectly by failing to object to its inclusion.
[43] As a result of this new disclosure, despite a positive and constructive longstanding working relationship with the crown, counsel made the decision to seek the removal of the assigned crown as counsel on this matter because he wished to call her as a witness during the abuse of process application. Based on the contents of DC Chapman’s notes and the manner in which they were written, I find that counsel had a reasonable basis to make this difficult decision and it was far from speculative.
[44] Counsel immediately followed up with the crown on January 1st, 2021 about how this new disclosure impacted his application (exhibit J). The relevant parts of that email are as follows:
P.C. Chapman’s notes, only disclosed, incredibly, for the first time yesterday, make clear you were a witness—if not a participant—in the drafting of the advertisement, specifically including the racist trope. I am at a loss as to why you did not mention your involvement in the drafting of the ad in all of our correspondence and the discussions in pre-trials on the issue where you tried to justify the inclusion of the trope, but you’re going to have to recuse yourself and have the matter prosecuted by another Crown. I need to know before Monday if you’re resisting recusing yourself so that I can serve and file an Application to Recuse.
Obviously, the scope of my abuse of process application must now expand to include the role of the Attorney General as well as that of the police.
I hold to my time estimate made yesterday about the expert in-chief— that his evidence, given your cross-examination time estimate, will take one-half of one day, but now the trial will begin with a recusal application if you do not concede the issue.
[45] In response, the crown sent two emails to counsel. On January 2nd, 2021, (exhibit J) the assigned crown provided the following evidence:
I played no part whatsoever in drafting the advertisement or approving its wording. DC Chapman can confirm and clarify that as soon as he is back in the office - he is away right now. There is no basis for recusal, and I do not anticipate an application will be required. [emphasis mine]
[46] In a subsequent e-mail dated January 3rd, 2021, (exhibit K) the assigned crown emailed counsel again and the wording of her recollection changed:
Regarding your request for clarification about my knowledge of the language in the ads, I do not recall being specifically aware of that language until you directed my attention to it in your email of August 2019. I want to be clear that I am providing you with this information as a courtesy and to alleviate any unnecessary concerns on your part, and not because I view myself as having an obligation to answer questions of this nature or because I see myself as having any material evidence to provide in this case. I would note parenthetically that even if I had been made aware of the language in the ad at some point prior to the execution of the project, I would not view this as a reason to recuse myself from the case. Only DC Chapman is in a position to explain why he wrote his notes in the way that he did. I do not recall there being any discussion of the ad language during our meeting, and can re-iterate that I played no part in coming up with or approving that wording. Nor did Ms. Orlando, as far as I am aware. There is no correspondence on the issue. I note that if any such correspondence did exist, I would have to further consider my position on work product or solicitor-client privilege, but because it does not exist the issue is moot.
DC Chapman sent me his memo book notes on December 28, 2020. I was on holidays at the time but sent them to you as soon as I was able to do so, on December 31, 2020. As I indicated in the email to you, it was by oversight that these notes were not sent to you earlier. I did not realize DC Chapman had made any memo book notes in this case at all, prior to that time. [emphasis mine]
[47] I agree with counsel that there is a difference between the wording in the email on January 2nd emphatically stating “I played no part whatsoever in drafting the advertisement or approving its wording” and the email on January 3rd that “I do not recall there being any discussion of the ad language during our meeting, and can re-iterate that I played no part in coming up with or approving that wording.” Based on the crown’s assertion in the January 2nd email that DC Chapman “can confirm and clarify” that she had no role, it seems that she spoke with him about what happened during the meeting before he was called as a witness.
[48] If the extent of the evidence was just the paper exhibits, the crown would have been well positioned to submit that any issues counsel wants to explore with respect to the crown’s involvement in the inclusion of the impugned phrase in the ad, if any, could be addressed by calling DC Chapman as a witness. However, DC Chapman was called as a witness and his evidence was very problematic.
[49] The assigned crown was accommodating and professional with counsel. While she indicated on the record that she would not answer counsel’s inquiries about this meeting, she made the officer available for questioning by defence counsel at his convenience. She responsibly notified the officer about the application to recuse her and that the application related to the notes that he recently disclosed. She also advised him that he may be called as a witness during the application. If that was the extent of their conversations or communications, there would be no issues. However, DC Chapman provided additional, albeit conflicting, information about their discussions before he was called as a witness.
[50] DC Chapman initially testified that the assigned crown had not discussed the contents of the April notes with him prior to his testimony. Counsel pressed this issue and asked again, between December 28th, 2020 when he disclosed his notes and January 7th, 2021 when he was called as a witness, whether the assigned crown had discussed with him what went on during their meeting on April 8th 2019 and what was said or not said by her. DC Chapman replied “I don’t think so. No.” Counsel then confronted DC Chapman with the following exchange during a recorded interview that he had with him the previous day:
Q. Oh, did you discuss what happened at the meeting with Ms. Newhouse since you disclosed the notes to her? A: No Q: You haven’t discussed with her at all the content of that meeting since you disclosed the notes to her? A: Not that I remember, no. She called and said you were interested in that, and she talked about the meeting that we had, and that’s all. Q: Okay. What – so she did discuss the meeting the two of you had, had? A: No, she – she said that you were concerned about this part of my notes and wanted to have a meeting with me today about that. Q: Okay. And when you spoke with her, you didn’t discuss what happened at that meeting in April of 2019? A: She had brought – she had brought up that topic of “no black gents” and she says I didn’t have a part of that and I --- I agreed, I didn’t talk to her about that part -- in any part of the ad, writing the ad
[51] After being confronted with this exchange, DC Chapman changed his evidence and agreed that the assigned crown told him that it was her position that she had no part at all in the drafting of the ad. This evidence was consistent with the wording of the assigned crown’s email on January 2nd. However, DC Chapman almost immediately contradicted himself when he was asked the same questions in re-examination.
[52] I can accept all, some or none of a witness’ evidence, while I found DC Chapman’s explanation about how he came upon the April notes while preparing for this trial and his reasons for the late disclosure to be compelling and credible, there were significant aspects of his evidence that were not credible.
[53] I find that DC Chapman was not being candid or forthcoming about what the crown told him about her role in the meeting before he testified. This meeting took place 21 months ago, there should not have been any discussions whatsoever between the assigned crown and DC Chapman about their respective recollections of what happened during that April 8th, 2019, interview. Memories fade over time and one potential witness telling another potential witness what he or she recalls can intentionally or unintentionally influence the other person’s recollection.
[54] In addition to DC Chapman’s evolving evidence about what, if any, discussions he had with the crown about what she said or didn’t say about her memory of the April 8th meeting, his explanation for what he wrote in his notes made absolutely no sense. He advised counsel in their interview and during his evidence that he knew the inclusion of the impugned phrase was very “bold”. He apparently repeated this reference to the impugned phrase being “bold” several times. He met with the crown assigned to human trafficking on April 8th, 2019 specifically to consult with her about the project and “discuss issues and plan”. The next sentence detailed the plan to advertise in Leo List. The next sentence explained that was because “multiple victims” told him that it was “the most popular site to attract Johns”. The very next sentence after “Johns” starts with same phrase that “multiple victims have told me” and the rest of the paragraph explains why he was contemplating including the bold phrase “no black gents” in the fake ads.
[55] DC Chapman testified that, even though he was meeting with the crown to discuss the investigative plan, he did not bring his notebook with him. He had no idea how long the meeting was. Even though his notes specifically state that he was meeting with the crown “re project and discuss issues and plan” and the rest of the paragraph is the plan and specific issues with the placement of the ad and a “bold” statement to be included in the ad, he claimed that he did not discuss anything included in that one entry in his notebook, on that one recorded date and time, with the assigned crown after the word “Johns”. Conspicuously, the only part of that notebook entry that was not discussed with the crown is the subject of this application.
[56] DC Chapman testified that he wrote these notes sometime later in the day. He wrote about the meeting with the crown and, at some other point, he wrote his thoughts about including this bold phrase. Counsel confronted him with the fact that, if he thought this was such a bold phrase, he would have discussed what he was contemplating with the crown he met with specifically to discuss issues with the project. DC Chapman maintained that it was a separate entry, a separate thought, there was no discussion with the crown about this phrase, it is just a coincidence that it all seems to flow, like one connected notation summarizing their meeting.
[57] DC Chapman’s evidence about the contents of the notes being separate thoughts and occurrences was illogical and unbelievable. I find that DC Chapman did not provide a credible or reliable account of what happened during the meeting with the crown on April 8th, 2019.
[58] The only other person who knows what happened during that meeting is the assigned crown. She may recall how long the meeting was, whether DC Chapman actually had his notebook with him that day and what it is that they actually discussed during that meeting about the project and the plans. I accept that the assigned crown’s position is that she emphatically denies playing a role in drafting or approving the advertisement, but she also stated that she doesn’t currently recall discussions about the ad during the meeting. In addition, if the assigned crown has such a confidant recollection of what she didn’t do, then she must have some recollection of what she did discuss with this officer during this meeting.
[59] The crown has not been subject to examination. She has not provided any evidence about what they did discuss during the meeting, if it wasn’t about the ad, when the project involved creating a fake ad to attract offenders. In one of the recent emails, the crown stated that she wasn’t even aware that the impugned phrase was in the ad until counsel brought it to her attention in August of 2019. However, in the email exchange with counsel in August of 2019, she clearly wasn’t troubled or surprised at all by the inclusion of the phrase because she wrote “haha “black gents” is HT for pimps”.
[60] Contrary to the assigned crown’s written submissions seeking summary dismissal of this application, I find that it is not speculative for counsel to suggest that the crown was involved in the process of developing or approving the impugned language when the officer’s notes of that meeting start with a reference to discussing the issues and the investigative plan and, then he went on to describe the plan including the explanation of why this “bold” expression may be included in an advertisement.
C. The applicable law
[61] It should be a very rare occurrence when advocates are compelled to be called as witnesses during a proceeding that they are involved in due to the obvious potential to disrupt the litigation and delay matters. For example, the three days that were set aside for this trial have been consumed with this application.
[62] As a result, the test for compelling one of the litigants in a proceeding to testify is more stringent that the ordinary test for issuing a subpoena. In the seminal decision of R. v. Elliot, [2003] O.J. No. 4694, the Ontario Court of Appeal explained that:
114 It is only in exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness. It is not sufficient that the counsel may have material evidence to give. The party seeking to call opposing counsel must lay an evidentiary foundation for showing that the counsel's evidence is likely to be relevant and necessary. This stringent test applies whether it is defence counsel seeking to call Crown counsel or Crown counsel seeking to call defence counsel. This rule has been laid down in many decisions of the Superior Court. Craig J. expressed the test, in part, as follows in R. v. Stupp, Winthrope and Manus (1982), 36 O.R. (2d) 206 at 219 (Ont. H.C.J.):
In my opinion, when a subpoena or the right to call a witness is challenged as here, it is not sufficient for the party proposing to call the witness to merely allege that the witness can give material evidence; but rather the onus is on the accused in this case to establish that it is likely that Brian Johnston can give material evidence. That is particularly applicable where, as here, the accused takes the extraordinary step of seeking to call Crown counsel as a witness. If Brian Johnston is called, he obviously cannot continue as counsel at the preliminary hearing and other counsel will be required to pick up the pieces of a long and complicated preliminary hearing. It is an interference with the judicial process which can only be contemplated in unusual cases. In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis for believing that it is likely the witness can give material evidence. If it is otherwise, preliminary hearings and trials can be interrupted at random; and the administration of criminal justice could be seriously impaired. That is particularly so where, as in this case, there are extensive police investigations. If the investigating officers seek legal advice during the course of the investigation, then Crown counsel in all such cases may be put under subpoena in an attempt to establish abuse of process.
115 In R. v. Sungalia et al., [1992] O.J. No. 3718, Campbell J. held as follows:
Crown counsel and defence counsel are subject to the process of the court. They are not immune from subpoena.
As a practical matter, however, criminal litigation would be impossible if Crown counsel had the unrestricted right to call defence counsel as a witness or if defence counsel had the unrestricted right to call Crown counsel as a witness.
There is a persuasive burden on the lawyer who seeks to force opposing counsel to go into the witness box and relinquish his role as counsel. The persuasive burden is to show relevance and necessity.
As a general rule neither relevance nor necessity is shown simply because opposing counsel, accompanied by an assistant interviews a witness whose statement becomes the subject of cross-examination. If Crown counsel or defence counsel could be routinely called as a witness simply because she had previously interviewed one of her own witnesses then no lawyer, Crown or defence, could ever prepare properly for trial.
116 We agree with these statements. In particular, we stress the necessity part of the test.
(ii) The test for calling witnesses in general
119 Strictly speaking the necessity test did not apply to the Crown counsel from the Cumberland case. However, it was incumbent on defence counsel to show that these counsel had material evidence to give. Ordinarily, a subpoena will go as a matter of course upon the statement by counsel that a witness has material evidence to give. However, where the subpoena or the right to call a witness is challenged, a mere allegation that the proposed witness has material evidence to give is not sufficient. The party must establish that the witness can give material evidence. Defence counsel made no such showing with respect to the Cumberland Crown counsel.
120 We also note that Crown counsel offered to prepare an agreed statement of facts as to the proposed testimony of the two Cumberland Crown counsel, Ms. Bair and Mr. Cooper, to avoid their having to testify. This offer should have been pursued in the absence of some real indication that no agreement could be reached.
[63] While there are emails in evidence from the assigned crown stating what her anticipated evidence would be, there is an inconsistency between her statements in the two emails. During the assigned crown’s submissions, she made it emphatically clear to me that she was not prepared to provide further information by answering counsel’s email queries. There were no alternatives proposed to address this situation, like preparing a written statement outlining what, if anything, she recalls about this meeting. In addition, a new issue has arisen as a result of DC Chapman’s evidence that the assigned crown spoke to him between December 28th and January 7th about her recollection of what she did or didn’t say during that meeting in April of 2019 and his vacillating answers impacted my assessment of his credibility.
[64] The crown emphasized that there must be more than a mere possibility that the prosecuting crown has relevant evidence about the meeting that took place on April 8th, 2019 and whose decision it was to include the impugned phrase. The crown highlighted the following passages from R. v. Colbourne, [2001] O.J. No. 3620 at para 50 and 51 (Ont.C.A.)
It is certainly a possibility that under questioning, Mr. MacKinnon might have recalled matters that he had not previously recalled. But a possibility is not enough to justify compelling any person to testify, much less compelling prosecuting counsel to give evidence. In R. v. Harris (1994), 93 C.C.C. (3d) 478 at 480 (Ont. C.A.), which both counsel accept as the controlling authority, the court held: In our view, it is not sufficient to sustain the subpoena that the witness “may have” evidence material to the case. The burden was on the respondent to establish that Murphy [the prosecutor] was likely, or to put it another way, would probably have evidence material to the issues raised.
The court went on to observe at p. 480 that compelling a prosecuting counsel to testify if he or she might have relevant evidence to give would countenance what was in reality a “fishing expedition” that could significantly disrupt the trial process. It is well established that while a prosecuting counsel (or defence counsel) is a compellable witness, he or she should only be compelled to abandon the role of counsel and assume the role of witness in cases where the proper administration of justice demands that counsel become a witness: R. v. Kyling, [1996] Q.J. No. 1566 (Que. Sup. Ct.). [emphasis mine]
[65] Counsel is not engaged in a fishing expedition. He has ample evidence to support this application in the notes made by DC Chapman in April of 2019 that were only disclosed on December 31st, 2020. DC Chapman was not a reliable or credible witness about what happened during the April 2019 meeting with the assigned crown. Quite the contrary.
[66] There is no doubt that the assigned crown has invested substantial time and energy into preparing for this case. If I grant counsel’s application, it will result in the collapse of these proceeding and new trial dates will need to be set. However, that is not such a pressing concern since continuation dates are going to have to be set in front of me in any event because the late disclosure precipitated this application and consumed all the trial time.
[67] I am sensitive to the fact that the subject matter of this officer’s notes detail a consultation between a crown and an investigating officer about an ongoing project. There was absolutely nothing inappropriate or clandestine about this meeting. Police officers should be encouraged to seek advice and direction from experienced crowns about projects. It is an advisable practice to avoid legal issues down the road about the use of different investigative techniques. However, if an officer is going to employ a “bold” investigative technique, it is equally advisable to keep a disclosable record of who made that choice to avoid this type of confusion.
[68] Finally, the assigned crown alluded to the possibility that these types of consultations or discussions between the crown and police may be subject to either solicitor client privilege or work product privilege. A recognized exception to these rules of confidentiality arises when adherence to the rules would have the effect of preventing the accused from making full answer and defence. In this case, what really happened during that meeting will provide evidence about whether the officer sought the advice of the crown about utilizing this type of language in the ad.
D. Conclusion
[69] Counsel for Mr. S. should only be permitted to call the assigned crown as a witness if I am satisfied that there are exceptional circumstances. The test to be applied goes beyond whether the assigned crown is likely to give material evidence”, counsel must lay an evidentiary foundation that the assigned crown’s evidence is likely relevant, material and necessary.
[70] Who said what to whom and why about including the impugned phrase in the advertisement is essential to counsel’s understanding of the case to meet and the ability to make full answer and defence. Despite the assigned crown’s pronouncement during submissions that it was both DC Chapman and DC Bint who authored the ad, as the jurist who reviewed all of the materials and listened to DC Chapman, I am still confused about who made the decision to include the impugned phrase in the advertisement in this case.
[71] I find that the assigned crown’s account of what happened during that meeting in April of 2019 is material and relevant to the abuse of process application. Relevance and materiality is not sufficient to meet the standard, the crown’s evidence must also be necessary. It is important to emphasize that “necessary” means that the evidence cannot be obtained from another source.
[72] The investigating officer who wrote these notes and summarized the meeting was available and called as a witness during these proceedings but there were significant issues with his evidence. First, it is troubling that the crown may have shared her recollections of their discussions during the April 2019 meeting with him before he was called as a witness. Witnesses should provide a pure version of their recollections, that is the very reason why witnesses are often excluded from proceedings and excluded during certain objections during a trial. Secondly, there were only two people present for that meeting. I have found that DC Chapman was not a credible witness or reliable historian about what was discussed during the meeting with the crown. As a result, I find the proper administration of justice demands that the assigned crown is called as a witness during the abuse of process application.
[73] In these exceptional circumstances, I find that the stringent preconditions for calling the assigned crown as a witness during the trial have been met. As a result, the assigned crown will be removed as counsel for the trial.