Court File and Parties
Court: 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 Disclosure
PRUTSCHI J.:
[1] Mr. Galati faces a charge of dangerous driving arising out of his alleged behaviour on Aug. 5, 2019. The central crown witness on the trial is anticipated to be PC Robert Skelly, a York Regional Police (“YRP”) officer.
[2] PC Skelly was off duty, plain clothed, and in his personal vehicle when Mr. Galati's driving attracted his attention. PC Skelly followed Mr. Galati for a period of time making further observations of conduct he believed constituted the offence of dangerous driving. Mr. Galati eventually drove to a nearby OPP station where he was arrested and charged.
[3] Mr. Galati now brings an application seeking disclosure of the procedures and policies of the YRP relating to suspect apprehension pursuits" ("SAP") which are required to be made by all police services in accordance with O. Reg. 266/10.
[4] The crown is not currently in possession of the SAP. In an earlier ruling today, I granted standing to the YRP who, along with the Crown, jointly oppose this disclosure request. For the reasons that follow I order YRP to make disclosure of this material through the Crown to Mr. Galati.
[5] Today's Application essentially amounts to a classification hearing. If the SAP are classified as first party disclosure, YRP has an obligation to furnish them to the Crown who in turn must comply with their Stinchcombe obligation to disclose anything that is not clearly irrelevant. However, if the SAP is designated as a third party record, Mr. Galati would be obligated to pursue a further application in accordance with the O'connor regime.
[6] Following the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3, and R. v. Gubbins, 2018 SCC 44, material in the possession of police may be either first or third party disclosure depending on the circumstances. Such material will be designated first party disclosure if it is the fruits of the investigation or "obviously relevant".
[7] In Mr. Galati's case, the SAP is clearly not "fruits of the investigation", therefore the focus of the inquiry is on whether it is "obviously relevant". Gubbins defined this category at paragraph 23 as:
…information that is not in the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the Crown's case, raise a defence, or otherwise consider the conduct of the defence.
[8] The YRP and Crown characterize Mr. Galati's request as a speculative fishing expedition noting that even under McNeil, not all police discipline records are subject to first party disclosure - only those with relevance to the accused's case fall into this category.
[9] Counsel for Mr. Galati provided me with a series of Ontario cases in which police policies were deemed proper first party records and hence disclosed.
[10] In R. v. Forde, 2011 ONCJ 293, the central issue was eye-witness identification of the accused. Police conducted an unusual "group show-up" lineup where the witness was brought to the scene of the crime and asked to observe the group milling outside to see if he recognized the alleged perpetrator. The defence successfully sought first party disclosure of the police line-up and identification policy to assist him in attacking the reliability of the unique identification procedure used.
[11] In R. v. G. (S.), 2012 ONCJ 176, the accused was charged with sexual offences relating to a child complainant. The defence sought disclosure of police training materials in relation to the questioning of child witnesses. The Court found such materials to be proper first party records and ordered them disclosed noting at paragraph 40:
Where a police force has set out in writing certain standards, policies, and protocols that are applicable across the force for their officers to follow in doing something as important as interviewing child complainants of physical and sexual abuse, such material is clearly relevant to the defence in determining whether the interview in question was properly conducted in accordance with the police force's own standards.
[12] I also note the comments of Nakatsuru J. at paragraph 45 wherein he speaks to the nature police standards, policies, and protocols:
Disclosing such information can only enhance transparency and accountability in policing. Absent privilege concerns, the release of such information can only reinforce the ties between the police and the community it serves. Knowing that such standards, policies, or protocols are followed by individual officers instils confidence in and increases the standing and reputation of police. When they are not followed, the relationship between the police and the community is strengthened by the knowledge that the police force acts with openness rather than secretiveness with respect to any shortcomings of its members.
[13] Finally, in R. v. McGuigan, 2019 ONCA 1062, the Court of Appeal determined that materials setting out the testing and operating procedures for speed measurement devices were properly first party records and subject to disclosure. The Court noted at paragraph 100 that:
Testing and operating procedures are provided precisely so that users can accomplish what the device is intended to accomplish, in this case, to provide an accurate measure of speed. If testing and operating procedures are not complied with, it may cast doubt on the integrity of the results. Naturally, compliance with testing and operating procedures cannot be determined unless those testing and operating procedures are known.
[14] The thread running through all these cases is that the material sought was relevant to a determination of something directly in issue at the trial: identification, reliability of a child witness' statement, or the accuracy of a speed measurement device.
[15] Mr. Galati argues that the SAP is relevant to the determination of PC Skelly's credibility or the lawfulness of Mr. Galati's own actions which are alleged to constitute dangerous driving. Although counsel is not required to disclose the strategic direction of his case at this disclosure application, he noted that Mr. Galati may challenge the driving observations alleged by PC Skelly or position the driving as legally necessary in the circumstances, arguing that Mr. Galati would have been unaware PC Skelly was a police officer lawfully directing him to pull over.
[16] Though the Crown may ultimately contend that PC Skelly was not engaged in any form of "pursuit" covered by the SAP, Mr. Galati is entitled to challenge that assertion and suggest that the officer may have exaggerated or fabricated his observations of Mr. Galati's driving while downplaying the recklessness and dangerousness of his own driving in his efforts to complete a traffic stop.
[17] With PC Skelly's credibility squarely in issue, the question of whether he complied with YRP policy during his driving interaction with Mr. Galati might well be relevant to whether Mr. Galati's actions were dangerous in all of the circumstances or even whether PC Skelly was in a physical position to reliably make the observations he claims to have made.
[18] The proper functioning of an adversarial criminal justice system is dependant at its core on ensuring the accused has the necessary tools and information to make full answer and defence. The provision of relevant disclosure is the bedrock upon which full answer and defence rests. Courts must be cautious in overly circumscribing an accused's access to material that has the potential to impact their case.
[19] Though I appreciate that the obvious relevance of the SAP is somewhat less easily defined than the previous cases cited, the question of PC Skelly's compliance with the SAP does indeed relate to Mr. Galati's ability to meet the Crown case, raise a defence, or otherwise consider the conduct of his defence, as per Gubbins.
[20] The YRP raise a legitimate concern that a speculative cross-examination based on the SAP risks falling into wholly irrelevant areas but I note that the trial judge retains their gatekeeping function and is well-situated to assess on a moment-by-moment basis whether a line of questioning has strayed into impermissible territory.
[21] For these reasons I order that the YRP "Suspect Apprehension and Pursuit Policy" created pursuant to the Regulations be provided to the crown for disclosure to the defence.
[22] In making this order, I note that at the conclusion of his submissions counsel for Mr. Galati seemingly expanded the scope of his disclosure request beyond what appeared in his Form 1 Application. In oral argument Mr. Rishea characterized his request as seeking any and all policies and procedures relating to pursuit or following by YRP officers.
[23] In my view this request is vague and overly broad such that it amounts to the very fishing expedition YRP counsel alleged. I decline to make such an expanded order. The disclosure will be limited to policies and procedures in the hands of YRP which were made pursuant to the obligations imposed by sections 5 and 6 of O. Reg. 266/10.