Court File and Parties

Ontario Court of Justice Date: 2021-04-08 Court File No.: Newmarket 19-07682

Between:

Her Majesty The Queen

— And —

Giuseppe Joseph Galati

Before: Justice Edward Prutschi

Heard on: April 8, 2021 Reasons for Judgment released on: April 8, 2021

Counsel: Brian McCallion, counsel for the Crown Vincent Rishea, counsel for the defendant Giuseppe Galati Jason Fraser, counsel for the York Regional Police

Reasons for Judgment on Application for Standing

PRUTSCHI J.:

[1] This is an application by defence for disclosure of police policy documents in the possession of the York Regional Police (“YRP”).

[2] Prior to addressing the substantive question of whether such disclosure should be ordered, Mr. Fraser on behalf of YRP seeks standing on the application. The crown supports this position. Mr. Rishea on behalf of Mr. Galati objects.

[3] The question at issue is whether police should have standing to make submissions at the classification stage of a contested disclosure application where their own records are sought as first party disclosure.

[4] There appears to be very little precedent providing guidance on this question. The disclosure application in this case amounts to what is known as a 'classification hearing'. The sole issue to be decided is whether the policy documents sought are first party records subject to automatic disclosure per the Crown's Stinchcombe obligations, or third party records subject to the O'Connor regime.

[5] Counsel for YRP cites two cases in support of his position. In R. v. Oleksiuk, 2013 ONSC 5258, the trial court was faced with a disclosure application for records in the hands of the OPP. At the first instance, only the Crown made submissions and the trial judge ordered disclosure to be made. Both the Crown and OPP applied to the SCJ for certiorari where James J. noted at paragraph 32 that, though the law in this area is not settled and the interests of the OPP and Crown may not be identical, the OPP has a "direct interest in addressing disclosure issues". The Court cited principles of natural justice alluding to the audi alteram partem rule that a party with interest in a matter should be granted the right to be heard, quashing the disclosure order and remitting it back to the trial judge for reconsideration after of submissions from the OPP.

[6] In R. v. Lalic, 2010 ONCJ 564, the defence sought disclosure of RCMP policies. The applicant in that case conceded that the RCMP should be granted standing to argue the classification issue and Dean J., relying on precedent from Alberta, noted that, "As a general rule, the third party should be given standing to be heard in the classification issue".

[7] Mr. Rishea urges me to find that both those these cases were wrongly decided and notes that neither is binding on me.

[8] He further argues that there is an important policy reason for barring a third party police force from inserting itself into a classification hearing; it is the Crown alone – in their role as a Minister of Justice – who should be acting as the respondent on a disclosure application. This clear division would serve to prevent criminal cases from inappropriately devolving into partisan battles.

[9] While there is some attractiveness to this policy argument, Mr. Rishea conceded that there was no practical consequence to such a position for Mr. Galati. In this case the Crown's submissions on both the standing issue and the classification issue are a wholesale adoption and echoing of the written and oral submissions of the YRP.

[10] In such circumstances, counsel for the YRP could literally whisper into the Crown's ear or simply invite the Crown to read in their written submissions accomplishing in substance what might be prohibited in practice. In my view, the interests of justice are advanced when substance takes precedence over form.

[11] In the majority of disclosure applications, the classification question is not a live one, it being obvious whether something is a first or third party record by simple analysis of the record itself and in whose hands it resides. The scenario is somewhat unique where a police force is the third party record holder. Police records can be either first or third party depending on factors to be considered in the classification hearing. This duality favours allowing a police force standing at the classification stage.

[12] Having considered all of the above, the YRP is granted standing for the classification hearing and may make submissions and argument in that respect.

Released: April 8, 2021 Signed: Justice Edward Prutschi