ONTARIO COURT OF JUSTICE
DATE: 2021 07 19 COURT FILE No.: Toronto, College Park 21-7500017
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ALI NASSIR SHOWBEG
Before: Justice J. W. Bovard
Third party records application heard by way of written submissions submitted to the court in May, June and July 2021 Reasons for Ruling on stage one released on July 19, 2021
Counsel: Ms. E. Jackson ................................................................................... counsel for the Crown Mr. M. Chinneck ……………………………………counsel for Toronto Police Services Ms. K. Schofield ...................................... counsel for the accused Ali Nassir Showbeg
Bovard J.:
[1] This is a ruling on stage one of the defence’s third party records application for the production of records in the custody of the Professional Standards Unit of the Toronto Police Service. Counsel agreed to present their arguments by way of written submissions at the same time on stages one and two.
Introduction
[2] On March October 27, 2019 the police arrested Mr. Showbeg for impaired driving and refusing to provide a breath sample. They searched him incident to the arrest, put him in the back seat of their cruiser and started to drive to the police station. During the ride, they heard a noise in the back seat of the cruiser. They stopped to investigate and found that Mr. Showbeg had a handgun that they had not discovered when they searched him at the roadside. They seized the gun and proceeded to the police station.
[3] A video camera inside the police cruiser recorded Mr. Showbeg in the backseat of the cruiser with the gun. The police took Mr. Showbeg to 41 and 51 Divisions for processing. Shortly afterwards someone from the Toronto Police Service (TPS) divulged the video to the media.
[4] Many articles were published in Ontario and Quebec about the incident. Some of the articles included portions of the video and still pictures of Mr. Showbeg in the back of the cruiser with the gun.
[5] The TPS sent Mr. Showbeg a letter dated November 14, 2019, to advise him that this “inappropriate release” breached his privacy and that they would start an investigation into the matter. However, the TPS have never advised Mr. Showbeg of the results of the investigation, nor revealed the officers’ names that they investigated.
[6] The defence asked for the records of the investigation but the TPS refused to divulge them. Therefore, the defence brought this third party records application to obtain the records.
Order sought by the applicant
[7] The applicant seeks an order for production of the records in the possession of the Professional Standards Unit of the Toronto Police Service relating to:
The investigation into the breach of Mr. Showbeg’s privacy by TPS officers on or about October 27, 2019. This includes records of any investigation undertaken, the service records of the officers that were investigated or disciplined and the results of such investigation.
The Issues
Stage one
[8] The issues in stage one are the following:
- Has the defence established that “the information contained in the records is likely to be relevant either to an issue in the proceedings or to the competence to testify of the person who is the subject of the records”? [1]
- If the defence establishes that the records are likely relevant, do the salutary effects of ordering that they be produced outweigh the deleterious effects of their production, having regard to the accused’s right to make full answer and defence and the effect of such production on the privacy and equality rights of the subject of the records”? [2]
Disposition
[9] For the reasons stated below, I find that the defence discharged its onus on stage one of its 3rd party records application. I order that the records be produced to me so that I can review them to determine if the defence discharged its onus on stage two of the application.
The evidence
Defence evidence
[10] The defence evidence is contained in the affidavit of Mr. Ricardo Golec. He states that Officers Lee and Hansen of the TPS arrested Mr. Showbeg on October 27, 2019 for impaired driving and refusing to give a breath sample. They patted him down and put him in the rear seat of their police cruiser.
[11] The cruiser had a video camera that recorded Mr. Showbeg while the officers drove him to 41 Division. The camera filmed Mr. Showbeg with a handgun as he sat in the back seat.
[12] Someone in the TPS released the video to the media. The defence does not know who is responsible. In the following days, numerous media outlets in Ontario and Quebec published stories in print and on visual media concerning the incident. Many of the stories showed the video of Mr. Showbeg in the cruiser with the handgun and still pictures taken from the video that showed him with the handgun. Mr. Golec provides summaries of these stories and provides hyperlinks to them.
[13] In one media report, Police Chief Mark Saunders, the Chief of the TPS at the time, stated that he “ordered a full investigation into the leak of the in-car camera evidence which is a clear breach of protocol and procedure”.
[14] In another media report he said that “The leaks are going to be the death of us. When you take the oath of office, you are not allowed to share information that was given to you as a result of you in your position of authority. When you breach that, it compromises on a lot of things”.
[15] On November 14, 2019, Mr. P. McGee of the TPS’s Access and Privacy Section sent a letter to Mr. Showbeg. Mr. McGee acknowledged that there was an “unauthorized disclosure of [his] personal information by the Toronto Police Service (TPS)”.
[16] Mr. McGee described the breach of Mr. Showbeg’s privacy as “a record related this arrest, (sic) (e.g. the In Car Camera footage of you sitting in the backseat of a Toronto Police Service scout car), was publicly released without your written consent”. [3]
[17] Mr. McGee told Mr. Showbeg that the TPS Professional Standards Unit was going to investigate “the circumstances surrounding this inappropriate release, the involved subject members and if this is a training or conduct issue. As such, there are not further details to provide at this time”. Mr. McGee added that if they determined that it was a conduct-related issue, they would deal with it under the Police Services Act.
[18] To this day, the TPS has not told Mr. Showbeg anything more about their investigation.
[19] Mr. Golec avers that it appears that the TPS disciplined at least one officer for the leak to the media. No disclosure has been made in this regard, however.
[20] Mr. Golec states that it is likely that either Officer Lee or Hansen, or both of them played a part in divulging the video to the media. Therefore, information about the TPS investigation is required in order to make full answer and defence. For example, if Officers Lee and Hansen, or one of them leaked the video, this information would be relevant to the issue of potential animus on their part toward Mr. Showbeg. It would also be relevant to their lack of consideration for Mr. Showbeg’s safety or Charter rights.
[21] Moreover, Mr. Showbeg is bringing a Charter application based on the breach of his privacy by the TPS. Without the information regarding the TPS investigation into the privacy breach, it would be difficult for the defence to establish a strong evidentiary record for the Charter motion.
Toronto Police Service evidence
[22] The evidence on behalf of the TPS is contained an affidavit from Inspector John Babiar. He is an Inspector in the Professional Standards Unit and as such has knowledge of the case.
[23] He said that on October 30, 2019, he “was provided a list of the individuals who had access the (sic) In Car Camera video relating to Mr. Showbeg’s arrest/transportation to 41 Division”. [4]
[24] “On or about May 07, 2020” Inspector Babiar “was provided a copy of the investigative report relating to the dissemination of the Showbeg video to the media”. [5]
[25] He avers that “the officer who was found to have originally recorded and disseminated the video was not involved in the arrest of Mr. Showbeg”. [6]
[26] Furthermore, this officer was not involved in the investigation of Mr. Showbeg. In addition, the officer did not work in 41 or 51 Division, which is where Mr. Showbeg was paraded and detained.
[27] This officer disseminated the video to other members of his team. But the TPS investigation could not determine who provided the video to the media.
[28] That is the extent of Inspector Babiar’s evidence.
Defence submissions
[29] At Mr. Showbeg’s trial the defence plans to bring an application under s. 7 of the Charter. The basis of the application is the divulging to the media of the videotape of Mr. Showbeg in the backseat of the police cruiser when Officers Lee and Hansen took him to 41 Division on October 27, 2019.
[30] There is a likely possibility that one or both of these officers played a part in the divulging of the videotape to the media. The Professional Standards Unit of the TPS investigated the incident but refuses to disclose the records of the investigation to the defence. The defence needs the records to establish a strong evidentiary foundation for its Charter application.
[31] In addition, the defence submits that it needs the records in order to determine if there is potential bias against Mr. Showbeg on the part of Officers Lee and Hansen.
[32] Therefore, the applicant argues that the records are likely relevant to issues at trial and that their production and disclosure is necessary in the interests of justice. The applicant needs them to make full answer and defence.
[33] The defence has met the tests set out in R. v. O’Connor for disclosure of the records.
[34] There is no potential prejudice to the TPS’ dignity, privacy or security of the person if the court orders that the records be disclosed.
[35] In summation, the defence submits that the records are likely relevant to issues at trial and that the production and disclosure of the records is necessary in the interests of justice. [7]
Counsel for the TPS submissions
[36] Counsel for the TPS agrees that “a member of the Toronto Police Service inappropriately disseminated the video …” [8] But he submits that the records of the investigation into this action “have no relation to, or bearing upon, the Applicant’s ability to raise full answer and defence to the charges against him”. [9]
[37] He argues that the TPS Professional Standards Division investigated the matter and they found that the officer who disseminated the video was not “an officer who investigated or arrested the Applicant at any time”. [10]
[38] In addition, the culprit does not work at the divisions where Mr. Showbeg was processed.
[39] Counsel for the TPS did not address the defence argument that the records are required for it to fully argue its Charter application.
Analysis
The law
[40] In O’Connor [11], the Supreme Court of Canada directed that,
At the trial, when the accused applies for an order for production of the records, the judge should follow a twostage approach. First, the accused must demonstrate that the information contained in the records is likely to be relevant either to an issue in the proceedings or to the competence to testify of the person who is the subject of the records. If the information does not meet this threshold of relevance, then the analysis ends here and no order will issue. [Second] However, if the information is likely relevant to an issue at trial or to the competence of the subject to testify, the court must weigh the positive and negative consequences of production, with a view to determining whether, and to what extent, production should be ordered. (emphasis added)
[41] O’Connor held further that if the defence passes the first phase of stage one, the analysis moves to the second phase of stage one, which has two parts.
First, the trial judge must balance the salutary and deleterious effects of ordering the production of the records to the court for inspection, having regard to the accused's right to make full answer and defence, and the effect of such production on the privacy and equality rights of the subject of the records. If the judge concludes that production to the court is warranted, he or she should so order. [12] (emphasis added)
Procedural requirements
[42] In O’Connor, L'Heureux-Dubé J. held that when an accused person seeks the production of private records that are held by a third party, the accused must subpoena the records and notify the Crown, the subject of the records, and any other person with an interest in the confidentiality of the records. I find that the applicant satisfied this requirement. [13]
[43] Next, the accused “must bring an application supported by appropriate affidavit evidence showing that the records are likely to be relevant either to an issue in the trial or to the competence to testify of the subject of the records”. [14]
[44] In addition, the salutary effects of the production of the records must outweigh the deleterious effects of producing them “having regard to the accused's right to make full answer and defence, and the effect of such production on the privacy and equality rights of the subject of the records”. [15]
Likely relevant
[45] I will turn now to the test for stage one: are the records sought likely relevant either to an issue in the trial or to the competence to testify of the subject of the records?
[46] L'Heureux-Dubé J. explained that,
the accused must establish a basis which could enable the presiding judge to conclude that there is actually in existence further material which may be useful to the accused in making full answer and defence, in the sense that it is logically probative [citation omitted] (para. 138).
[47] The applicant cannot rely on “speculative assertions” (para. 140).
[48] The applicant bears a “significant burden” to demonstrate that the records sought are likely relevant. The applicant cannot invoke credibility at large but must provide a basis to show that there is likely to be information in the records that would pertain to the complainant’s credibility on a “particular, material issue at trial” (para. 142).
[49] In paragraph 24, Lamer CJ and Sopinka J. agreed that “likely relevance” is the appropriate threshold for the first stage”. They emphasized that even though it is a significant burden, it is not an onerous one. The onus is low in stage one. Also, at this stage the court does not consider whether the evidence would be admissible.
[50] Relevance to “an issue at trial” encompasses evidence that “may be probative to the material issues in the case (i.e. the unfolding of the events) [and] also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case” (para. 22, Lamer CJ. and Sopinka J.)
[51] In borderline cases, the judge should err on the side of production to the court. [16]
Disposition
[52] Based on the evidence before me, I agree that it is likely that Officer Lee or Officer Hansen, or both, were involved in some way in the divulging of the videotape in question to the media.
[53] I note that Inspector Babiar stated in his affidavit that “the officer who was found to have originally recorded and disseminated the video was not involved in the arrest of Mr. Showbeg”. [17]
[54] I did not understand this evidence because the arresting officers were the ones that “originally recorded” the video on their in-car camera while they were taking Mr. Showbeg to the police station.
[55] The TPS accepts responsibility for breaching Mr. Showbeg’ privacy by divulging the video to the media. They told him that they launched an investigation into the matter. The Professional Standards Unit conducted the investigation. It stands to reason that it has the records of the investigation or knows who does.
[56] I agree with the defence that in the likely event that Officers Lee and Hansen, or one of them played a part in the disclosure of the videotape, the records of the investigation into the matter, including the results of the investigation would be relevant to the issue of potential animus on their part toward Mr. Showbeg, which could be relevant to their credibility or reliability at trial.
[57] It could also be relevant to their lack of consideration for Mr. Showbeg’s safety and for his Charter rights. This could be relevant to the defence’s Charter motion.
[58] O’Connor held that if the records are relevant, the salutary effects of their production must outweigh the deleterious effects of producing them “ having regard to the accused's right to make full answer and defence, and the effect of such production on the privacy and equality rights of the subject of the records”. [18]
[59] In performing this balancing function, I find that in the case at bar, the salutary effects of the defence having the best chance to make full answer and defence by being able to examine the records in question outweighs any deleterious effects of ordering that they be produced. There is no evidence before me of any particular privacy or equality right possessed by the TPS in this case that would trump the defence’s right to make full answer and defence at trial, including establishing the best grounds for its Charter motion.
[60] Counsel for the TPS seems to consider that Inspector Babiar’s affidavit forecloses all the defence arguments for disclosure of the records. I do not think that it does.
[61] Counsel for the TPS argued that the TPS investigation found that the officer that disseminated the video did not arrest or investigate Mr. Showbeg. Nor did this officer work at the Divisions where Mr. Showbeg was processed. These arguments are based on Inspector Babiar’s affidavit.
[62] I find that the evidentiary foundation that Inspector Babiar’s affidavit provides for his statements is scant. He does not provide very much detail.
[63] Even if the culprit was not one of the arresting or investigative officers, there is nothing in Inspector Babiar’s affidavit that discounts the possibility that one or both of the arresting officers or anyone that investigated the matter did not play a role in the dissemination of the video.
[64] This is a live issue because Inspector Babiar’s affidavit leaves wide open the question of how the video got from the arresting officers’ in-car camera to the officer(s) who divulged it to the media. Inspector Babiar’s affidavit does not address the issue of the continuity of the video from the arresting officers’ cruiser to the culprit who disseminated it.
[65] The lack of evidence in this regard leaves unaddressed the possibility that the arresting officers played some part in the culprit obtaining the video. The records of the investigation could likely illuminate this issue.
[66] Whether the arresting officers played a role in getting the video to the culprit who disseminated it is an important issue because if they did, their actions could reasonably relate to the possibility of animus on their part towards Mr. Showbeg.
[67] Therefore, I disagree that the records have nothing to do with the ability of the defence to make full answer and defence.
[68] The same reasoning applies to counsel’s argument that the culprit does not work at the Divisions in which Mr. Showbeg was processed.
[69] In addition, this fact raises questions regarding how officers that were not involved with the arrest or investigation and do not even work at the same Divisions where Mr. Showbeg was processed obtained the in-car camera video.
[70] I find that the bare bones evidence of Inspector Babiar leaves many questions unanswered and raises other ones. I find that it is likely that the records of the investigation would clarify them. It is in the interests of the administration of justice that these questions be addressed as squarely as possible so that justice cannot only be done but be seen to have been done.
[71] Finally, counsel for the TPS did not address the defence argument that the records are relevant to its application under s. 7 of the Charter. The defence application refers to the TPS in general, not just to the individual(s) who played a role in divulging the video to the media. Therefore, I agree that the records are likely relevant to the defence’s Charter application, which forms part of the trial.
[72] Consequently, after considering the evidence, the law, and counsels’ submissions, and for the above stated reasons, I find that the defence discharged its onus to show that the records are likely relevant to its ability to make full answer and defence.
[73] Furthermore, I find that counsel for the TPS did not identify any deleterious effects on the TPS of producing the records for my inspection to see if the defence discharged its onus on stage two. Additionally, I can not think of any such effect(s).
[74] After considering all the circumstances I find that the salutary effects of the production of the records outweighs any deleterious effects of producing them “having regard to the accused's right to make full answer and defence, and the effect of such production on the privacy and equality rights of the subject of the records”.
[75] Consequently, for the reasons stated above, I find that the defence discharged its onus on stage one of its 3rd party records application. I order that the records be produced to me so that I can review them to determine if the defence discharged its onus on stage two of the application.
[76] I direct the clerk of the court, who I presume has the records, to deliver them as soon as possible to my assistant at the College Park court house so that she can give them to me for my consideration.
Released: July 19, 2021
Justice J. W. Bovard
[1] R. v. O’Connor [1995] 4 S.CR. 11, para. 137 [2] Ibid., para. 150 [3] Affidavit of Ricardo Golec, paragraph 13 [4] Para. 2 [5] Para. 3 [6] Para. 4 [7] Defence factum, page 5, Part III: Issues and the law [8] TPS factum, para. 2 [9] Ibid., para. 4 [10] Ibid., para. 5 [11] Para. 137 [12] Para. 150 [13] Para. 134 [14] Ibid. [15] Para. 150 [16] O’Connor (supra) para. 152 [17] Para. 4 [18] Para. 150