WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: October 21, 2021
B E T W E E N :
HER MAJESTY THE QUEEN
— AND —
MOHANDRANJAN NAVARATNAM
Before: Justice M. Speyer Heard on: October 7, 2021 Written reasons for ruling released on: October 21, 2021
Counsel: Maureen Pecknold, counsel for the Crown Sherif M. Foda, counsel for the accused Mohandranjan Navaratnam
M. SPEYER J.:
[1] The Applicant Mohandranjan Navaratnam seeks an order declaring a mistrial and permission to re-elect to a jury trial. He bases this application on the grounds that the Crown failed to disclose obviously relevant evidence in a timely fashion. He submits that the delayed disclosure resulted in a breach of his right to full answer and defence and his right to a jury trial. He argues that the only appropriate remedy is to declare a mistrial, and grant an order permitting him to re-elect to be tried by judge and jury in the Superior Court. The Applicant relies on ss. 7, 11(f), and 24(1) of the Charter.
[2] This application was heard on October 7, 2021 at the conclusion of which, I dismissed the application with reasons to follow. Herein are my reasons:
Background:
[3] It is useful to provide the procedural history that led to this application and my reasons for dismissing it.
[4] The applicant is charged with sexually assaulting V.H. on June 12, 2019. He was arrested on this date and released on conditions which include to have no contact directly or indirectly with V.H. In the weeks following his release, the prosecuting Crown provided initial disclosure of the evidence relating to the charge of sexual assault. At no time did counsel for the defence [1] raise a concern about outstanding disclosure.
[5] On November 19, 2019 the Crown elected to proceed by indictment and Mr. Navaratnam’s counsel filed a Notice of Election signed and dated November 18, 2019. Mr. Navaratnam chose to be tried by a provincial court judge without a jury or preliminary inquiry. A trial date of July 21 and 22, 2020 was scheduled, but adjourned due to the COVID-19 pandemic. A new trial date was set for April 27, 2021.
[6] On October 18, 2020, new counsel [2] for Mr. Navaratnam filed an application pursuant to s. 278.3 of the Criminal Code for:
- All Toronto Police Service (TPS) occurrence reports wherein the complainant called police to make an allegation of sexual assault, both before and after the Applicant’s arrest on June 12th, 2019; and
- All TPS occurrence reports in which the complainant was investigated by police as a suspect or an accused person, both before and after the Applicant’s arrest on June 12th, 2019.
[7] In response, the Crown inquired and disclosed the following:
- That the complainant did not have a criminal record;
- That the complainant did not have any outstanding charges;
- That there were police occurrence reports relating to the complainant, unrelated to the June 12th, 2019 sexual assault investigation;
- That these occurrence reports were not in the Crown’s possession; and
- That none of these unrelated occurrence reports involved the complainant making an allegation of sexual assault against any other men.
[8] Subsequently, Mr. Navaratnam advised the Crown and the court that he was abandoning his application for production of occurrence reports wherein the complainant made allegations of sexual assault against others. However, he still sought production of occurrence reports in which the complainant was investigated by police as a suspect or an accused person, both before and after the Applicant’s arrest on June 12th, 2019.
[9] In furtherance of his revised s. 278.3 records application, Mr. Navaratnam’s counsel brought an application under section 7 of the Charter for disclosure of a summary of the police occurrence reports involving the complainant. Specifically, he wanted disclosure of the number of occurrences, their dates, the nature of the reports, and the outcome of the investigations.
[10] I heard the disclosure motion on January 11, 2021 and dismissed it on January 19, 2021 on the basis that the occurrence reports sought were not first party disclosure and required an application for production pursuant to s. 278.3 of the Code. I further ruled that disclosure of a summary of the reports would undermine the strict procedural requirements of the Code.
[11] On January 21, 2021, counsel for Mr. Navaratnam expanded the scope of the s. 278.3 records application to include records in which the complainant made allegations of any criminal complaint. A subpoena was served on the Toronto Police Service on February 1, 2021 and on February 8, 2021, I ordered that any records held by the police be disclosed to Dawne Way, complainant’s counsel.
[12] The records application was scheduled to be heard on Feb. 1, 2021. However, prior to the hearing of that application, Mr. Navaratnam brought an application in the Superior Court for certiorari for a declaration that the decision in R. v. Reddick, 2020 ONSC 7156, declaring s. 278.92, 278.94 and 278.94(3) to be of no force and effect, was binding on me. That application was dismissed by Justice Low on March 29, 2021 (see R. v. Navaratnam, 2021 ONSC 2376).
[13] The 278.3 records application was delayed again when Mr. Navaratnam brought a constitutional challenge to sections 276(2), 278.92, 278.93 and 279.94. That motion was heard on April 27, 2021 and on May 11, 2021, I ruled that these sections were constitutional and applicable to this case. The 278.3 records application was then scheduled for August 4, 2021.
[14] Pursuant to my order of February 8, 2021, Toronto Police Service sent to Ms. Way occurrence reports in their possession concerning V.H. One of the occurrences, GO# 2019-1224731 dated July 1, 2019, involves an incident in which V.H. made a 911 call alleging that Mr. Navaratnam had breached the no contact and radius conditions of his release order. Ms. Way brought the nature and existence of that occurrence to the attention of the Crown on July 12, 2021 and it was promptly disclosed to defence counsel on July 16, 2021 [3].
[15] On August 4, 2021, Mr. Foda sought an adjournment of the s. 278.3 records application so he could consult with his client regarding the impact of this new disclosure. I granted that adjournment. On August 19, 2021 counsel for the applicant filed this application for mistrial and order for re-election. That application, along with the first stage s. 278.3 and s. 276 applications, were scheduled to be heard on September 14, 2021. Mr. Navaratnam failed to attend court on this day.
[16] The matter was further adjourned to October 7, 2021 and following submissions, I dismissed the application for mistrial. Before we could get to the other applications, Mr. Navaratnam’s counsel filed an application in the Superior Court for an order for certiorari and mandamus, effectively suspending the jurisdiction of the court in this matter.
Occurrence Report GO# 2019-1224731
[17] The occurrence report at the root of this application arises from an incident occurring on July 1, 2019. On this date, V.H. called 911 from a payphone to report that she had been at Karl’s Bar when Mr. Navaratnam approached her and started talking to her. She told the call taker that the accused was still in the bar and she was scared. Police went to Karl’s Bar and spoke with Mr. Navaratnam who advised that he had been at the bar all day and it was V.H. who had approached him asking for beer. The police also spoke to a bartender, who refused to identify herself, and she said that V.H. had approached Mr. Navaratnam to ask him for beer. Police reported that according to the unidentified bartender and Mr. Navaratnam, V.H. was trying to set him up for a breach charge.
[18] Police attempted to locate V.H. to take a statement from her but she was not at home and nor did she return their calls or emails. On July 9, 2019, police seized a copy of the surveillance video from Karl’s Bar. Without being able to speak to V.H., police decided not to charge Mr. Navaratnam with breaching the conditions of his release order.
Position of the Parties:
[19] The applicant states that the occurrence report is obviously relevant and is first party disclosure that should have been disclosed in 2019, before he was put to his election. He submits that the occurrence is significant because it relates to the complainant’s credibility, her potential for public mischief, her animus towards the applicant, and is evidence of investigative bias by the police in failing to pursue public mischief charges against the complainant.
[20] Mr. Navaratnam submits that delayed disclosure of the occurrence report amounts to a breach of his Charter right to make full answer and defence under s. 7, and his right to the benefit of a trial by judge and jury under s. 11(f). He states that this late disclosure affects his decision to have a trial by judge alone. Had he been aware of this occurrence report on November 19, 2021, he would have elected to have a trial by judge and jury. Relying on R. v. T. (L.A.), 14 O.R. (3d) 378; [1993] O.J. No. 1605, he argues that the only available remedy under s. 24(1) of the Charter is to declare a mistrial and permit him to re-elect to trial by judge and jury.
[21] The Crown takes the position that the report is a third party record requiring an application for production. Police occurrences that are not fruits of the investigation into the charges before the court are third party records in which the complainant retains a reasonable expectation of privacy (see R. v. Quesnelle, [2014] 2 S.C.R. 390, 2014 SCC 46). The report was discovered in the proper course following an application pursuant to section 278.3 of the Criminal Code. It was disclosed promptly when its relevancy became apparent and the prosecuting Crown became aware of its existence. The Crown submits that there has been no breach of the accused’s rights under s. 7 or 11(f) of the Charter.
First party vs. third party disclosure:
[22] The issue of whether there has been a breach of the applicant’s right to make full answer and defence and right to a jury trial turns on whether the occurrence report was subject to first party disclosure or subject to production on application for third party records pursuant to the regime outlined in s. 278.1 to 278.9 of the Code.
[23] It is a well-established principle that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. The duty, which is triggered upon request and does not require an application to court, applies only to the prosecuting Crown. Relevant information is any information that may reasonably assist the accused in making full answer and defence to the charge. It includes not only evidence that will form part of the case against the accused, but any information, whether admissible or not, that might possibly assist the accused in his defence. Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review by the court and the Crown must justify its refusal to disclose by showing that the information is "clearly irrelevant" or privileged: See R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[24] In R. v. McNeil, [2009] 1 S.C.R. 66, 2009 SCC 3, the Supreme Court of Canada held that the Crown cannot justify failure to make disclosure of relevant evidence on the basis that the police did not provide it (paragraph 24). The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of the police that is potentially relevant (paragraph 49). The police have a corresponding duty to disclose all material pertaining to its investigation of the accused, often referred to as “the fruits of the investigation” (paragraph 14, 22-23). In addition, the police may be required to hand over information beyond the fruits of the investigation where such information is “obviously relevant to the accused’s case” (paragraph 59).
[25] In R. v. Jackson, 2015 ONCA 832 the Court of Appeal outlined two factors that should be considered in determining which regime governs disclosure of the requested records: the nature of the records and who is in possesses or control of the record. Dealing with the nature of the documents, Justice Watts wrote at paragraph 92 and 93:
Turning first to the nature of the information. The descriptive “fruits of the investigation” accurately captures the subject-matter of first party/Stinchcombe disclosure. The term embraces relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.
In its normal, natural everyday sense the phrase “fruits of the investigation” posits a relationship between the subject-matter sought and the investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of that investigation.
The information includes, but is not co-extensive with, evidence, much less admissible evidence.
[26] Other records that are not part of the investigative file may also be the subject of first party disclosure. As held in McNeil and again in R. v. Gubbins, [2018] 2 S.C.R. 442, 2018 SCC 44, at para. 23:
In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is obviously relevant to the accused’s case. The phrase “obviously relevant” should not be taken as indicating a new standard or degree of relevance: Jackson, at para. 125, per Watt J.A. Rather, this phrase simply describes information that is not within 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. McNeil requires the police to hand such information to the Crown.
[27] In Gubbins, at para 24, the Supreme Court of Canada emphasized that the term “obviously relevant” is an important qualifier in determining which regime applies. The court cited with approval the decision of the Alberta Court of Appeal in R. v. Black, 2011 ABCA 349, at paragraphs 37-38:
All McNeil established is that disclosure of police misconduct records where they are obviously relevant is a matter of first party disclosure. In reaching that conclusion, the Supreme Court likened those types of records to records relating to convictions for perjury for Crown witnesses. Only records of misconduct that are obviously relevant form a part of first party disclosure. If the record of police misconduct is not obviously relevant, an accused person can still gain access to it relying on the O’Connor process for third party disclosure.
For all other records held by a public body, including the police, the Stinchcombe-O’Connor distinction continues to be the rule. The police are required to disclose the investigative file as first party Stinchcombe disclosure and other files or records in the hands of the police are subject to the O’Connor process. This would include files relating to complaints of criminal activity by Crown witnesses and the operational records of the police force or government body from whom records are sought [emphasis added].
[28] In Quesnelle the Supreme Court of Canada held that police occurrence reports for unrelated incidents involving the complainant or a witness in a sexual assault case are “records” withing the meaning of s. 278.1 and are subject to the statutory regime governing production to the accused. In doing so, the court recognized that police records often contain highly sensitive information in which individuals retain a reasonable expectation of privacy. Disclosure of this information ought not be disclosed unless the accused has demonstrated that the records are likely relevant to an issue at trial and its disclosure is necessary in the interest of justice. Writing for the court, Justice Karakatsanis held that the definition of “record” in s. 278.1 applies to police occurrence reports that are not directly related to the charges against the accused. Moreover, while the definition exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question (paragraph 2).
[29] The court in Quesnelle drew a distinction between occurrence reports which are made during the investigation of the offence being prosecuted, and which must be disclosed pursuant to Stinchcombe as first party disclosure, and occurrence reports that are unrelated to the offence. At paragraph 42, Justice Karakatsanis wrote:
But what of police occurrence reports that were made in connection with separate incidents, rather than as part of the investigation into the offence being prosecuted? There will certainly be times when the disclosure of such records is necessary to ensure a fair trial. Consequently, the Mills regime gives trial judges the power to disclose records under such circumstances. The judge must balance the privacy of complainants and witnesses against ensuring the disclosure necessary to make full answer and defence. However, the fact that a record might be disclosed under appropriate circumstances does not nullify the expectation of privacy in that record in general.
[30] The fact that the occurrence report is in possession of the same police agency as the prosecuting agency is not determinative of whether the record is subject to first party disclosure or a third party records application. In Quesnelle (paragraph 66) the court concluded that even occurrence reports made by the same police or prosecution agency which are unrelated to the offence being prosecuted, are third party records and subject to the statutory regime for production.
[31] In Gubbins, Justice Rowe at paragraph 32 held that relevance alone is not determinative of whether a record in possession of a state agency is subject to first party or third party disclosure: “A record may be relevant to the case against an accused and still be a third party record”.
[32] At paragraph 33 Justice Rowe outlined two factors that a court should consider in determining which regime applies:
Based on the previous discussion of disclosure regimes, to determine which regime is applicable, one should consider: (1) Is the information that is sought in the possession or control of the prosecuting Crown? and (2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime.[1] Otherwise, the third party disclosure regime applies.
[Footnote 1] Out of an abundance of caution, nothing in these reasons should be seen as detracting from the Mills regime which requires an application to obtain records “relating to a complainant or a witness” even if those records are in the possession or control of the Crown: see Criminal Code, ss. 278.1 to 278.9; R. v. Mills, [1999] 3 S.C.R. 668.
[33] I have included the footnote in the above quote as it contains a useful reminder that records pertaining to a complainant or witness in a sexual assault prosecution are subject to the statutory regime for third party disclosure, even when they are occurrence reports held by the same police agency that conducted the investigation into the charges before the court: Quesnelle, para 66.
Analysis:
[34] Applying these principles to the case before me, I conclude that the occurrence report and related 911 call and surveillance video are not “fruits of the investigation” or “obviously relevant” to the accused’s case. They are therefore not subject to first party disclosure. I base this conclusion on the following:
[35] The evidence was not gathered as part of the investigation into the charge of sexual assault. It was created because V.H. called the police on July 1, 2019 to report that the applicant had breached his release order. It is true that she referenced the alleged sexual assault in her call to the police. However, that was only for the purpose of advising the 911 call taker why the accused was on a release order. In the 911 call, V.H. makes no further mention of the sexual assault, and provides no further details about it.
[36] The occurrence report and related evidence were not created for the purpose of investigating the allegations of sexual assault, but as part of an investigation into a possible breach of the applicant’s release order. The fact that the applicant was not charged with that offence does not change the nature of the occurrence report. It is not “fruits of the investigation” into the charge of sexual assault.
[37] The record is also not “obviously relevant” to the accused’s case. The applicant states that the occurrence report is evidence of the complainant’s potential for public mischief and her animus towards the applicant. He relies on the utterance made by the unidentified bar tender to support his position that the complainant was trying to set him up for a breach charge.
[38] I agree that the report may be relevant to the complainant’s credibility and animus to the accused. However, relevance alone is not determinative of whether a record in possession of the police is disclosable as first party disclosure. The evidence in the occurrence report is a far cry from the type of misconduct evidence that was envisioned by the court in McNeil as being disclosable at first instance. As was pointed out by the Alberta Court of Appeal in Black, and approved by the Supreme Court of Canada in Gubbins, records which disclose charges or convictions for perjury and other serious misconduct are obviously relevant and disclosable as first party disclosure. On the other hand, files relating to complaints of criminal activity by Crown witnesses are subject to the third party disclosure regime.
[39] In this case, the complainant has not been charged or convicted with any offence in relation to the incident of July 1, 2019. It will be the position of the applicant at trial that the complainant misled the police for her own self-serving purpose. That is certainly an argument available to him and he may be entitled to cross examine her on this issue. However, this does not raise the significance of the occurrence report to the level of “obvious relevance” as described by the Supreme Court of Canada in McNeil and Gubbins.
[40] Lastly, it cannot be forgotten that the Crown’s ability to disclose unrelated occurrences involving the complainant is limited by s. 278.2 of the Code. In this case, the occurrence report was brought to the prosecution Crown’s attention as a result of the applicant’s 278.2 application and disclosed to him on consent of the complainant.
[41] In conclusion, I find that the occurrence report and related evidence was subject to third party disclosure and was not disclosable as part of initial or first party disclosure. The applicant’s right to full answer and defence has not been breached and nor was his right to a jury trial. As there is no breach, there can be no remedy pursuant to s. 24(1).
No prejudice to the applicant:
[42] Ordinarily this would end the matter. However, it is important to add that even if I had found that the occurrence report should have been provided as first party disclosure, the Crown’s failure to do so does not, in the circumstances of this case, amount to a breach of the applicant’s right to make full answer and defence and nor does it justify a declaration for a mistrial and order permitting re-election.
[43] Not every failure by the Crown to make timely disclosure results in a breach of the accused right to full answer and defence. The recent decision of the Ontario Court of Appeal in R. v. Barra, 2021 ONCA 568, para. 138 provides a useful summary on this point:
The right of an accused to disclosure is but one component of the right to make full answer and defence protected by s. 7 of the Charter. No bright line rule equates a violation of the right to disclosure with a breach of the right to make full answer and defence: R. v. Dixon, [1998] 1 S.C.R. 244, at para. 31; R. v. Bjelland, [2009] 2 S.C.R. 651, 2009 SCC 38, at para. 21. It follows that an accused must do more than show a breach of the right to disclosure to obtain a remedy under s. 24(1) of the Charter: Bjelland, at para. 21, citing R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 74. That something more is to establish, on a balance of probabilities, that their right to make full answer and defence has been violated: Dixon, at para. 32; Bjelland, at para. 20.
[44] In R. v. Bjelland, the Supreme Court of Canada dealt with the issue of when the exclusion of evidence will be an appropriate remedy under s. 24(1) for late disclosure by the Crown. In my view it has equal application to an order for a mistrial:
[21] However, the Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused must generally show “actual prejudice to [his or her] ability to make full answer and defence” (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 74) in order to be entitled to a remedy under s. 24(1).
[22] While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. In R. v. Harrer, [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness. She stated, at para. 45, that:
At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis added.]
[45] Accordingly, the applicant must establish a failure by the Crown to disclose and that this failure impaired his/her right to full answer and defence. To discharge this additional burden, an applicant must show that there is a reasonable possibility, not based on speculation, that the nondisclosure or delayed disclosure affected either the outcome of the trial or the overall fairness of the trial process: Barra, para. 140. A breach of the right to make full answer and defence can also be established where the applicant can demonstrate that late disclosure impacted on trial decisions, including his election as to mode of trial: R. v. T. (L.A.).
[46] The applicant submits that late disclosure of the occurrence report impacted on his election as to mode of trial. He says that had he known about the occurrence report he would have elected trial by judge and jury. His election is therefore a nullity as it was uninformed. He submits that a mistrial is the only suitable remedy.
[47] As observed by the Court of Appeal in R. v. Barra, at paragraph 147 an order for a mistrial is a remedy of last resort since it terminates the trial prematurely without adjudication on the merits. The decision to grant a mistrial is within the within the discretion of the trial judge. The judge must consider all of the circumstances to determine whether there is a real danger that trial fairness has been compromised.
Analysis:
[48] In the circumstances of this case, I do not agree that late disclosure of the occurrence report prejudiced the applicant’s right to full answer and defence or his right to a jury trial. I come to this conclusion based on the following factors:
[49] First, the incident of July 1, 2019 was within the knowledge of Mr. Navaratnam when he made his election. The police spoke to him on July 1, 2019. He was aware that V.H. had called them to complain that he had breached his release order. Indeed Mr. Navaratnam told the police officer investigating the incident that he believed the complainant was trying to set him up for a breach charge. In these circumstances, it is disingenuous of him to now state that had he known about the existence of the occurrence report he would have chosen trial by judge and jury.
[50] While it is true that Mr. Navaratnam did not have the actual occurrence report or the related 911 call and surveillance video when he made the election, he could easily have requested these from the Crown before choosing the trial forum. Recall that the duty to disclose by the Crown is triggered upon request by the accused. Mr. Navaratnam was represented by counsel who could easily have requested the occurrence report from that incident. He cannot now say that his failure to do so amounted to a breach by the state of his right to full answer and defence and his right to a jury trial.
[51] Second, Mr. Navaratnam’s position has been from the start, that V.H. made false allegations of sexual assault against him because she was intoxicated and/or mad at him. In his affidavit in support of his 278.3 application, Mr. Navaratnam states that the complainant has a pattern of calling the police on all of her ex-boyfriends when she gets mad. [4] The occurrence report of July 1, 2019 does not undermine that strategy. If anything, it is capable of supporting this proposition.
[52] Third, Mr. Navaratnam argues that the occurrence report demonstrates the complainant’s racial bias and animosity towards him. He points to the complainant’s 911 call wherein she called him a “Paki” [5], an obvious derogatory slur. He states that he would have wanted to put the complainant’s use of this racist epithet before a jury to illustrate her animus towards him.
[53] But again, V.H.’s use of racially biased language is not new. In her statement to police on June 12, 2019 she referred to Mr. Navaratnam as “an ugly Indian” [6]. Her racial bias and animosity are evident from her statement and was well known to the applicant when he made his election to have a trial by judge alone.
[54] Lastly, the applicant argues that he might have wanted to put before a jury the failure by police to investigate a potential public mischief charge against V.H.. He argues that this strategy would be better served before a jury. I do not agree. First, there is no reason to conclude that this strategy works better with a jury than a judge. Second, it was always open to the applicant to allege police bias or incompetence. Again, I go back to my initial observation that Mr. Navaratnam knew of the July 1, 2019 incident when he made his election. He was the one who told the police the complainant was making false allegations to “set him up”. He was also aware that the police did not pursue the matter because no charges were ever laid as a result of his complaint. This was all within his knowledge when he made his election. He cannot now claim that the late disclosure of the occurrence report prejudiced him.
[55] For all of the foregoing reasons I find that even if the Crown was required to disclose the occurrence report as part of first party disclosure, their failure to do so does not prejudice the applicant or amount to a breach of his right to full answer and defence or his right to a jury trial.
[56] The application is dismissed.
Released: October 21, 2021 Signed: Justice M. Speyer
Footnotes
[1] Not counsel on this application.
[2] Also not counsel on this application.
[3] The Crown states it was disclosed on July 12, 2021, the same day she was made aware of it. However, the email from the digital disclosure hub is dated July 16, 2021. This discrepancy is inconsequential, and nothing turns on it.
[4] See paragraph 11 and 12 of the applicant’s Affidavit dated October 15, 2020 in support his s. 278.3 application.
[5] See page 2 of the 911 call of July 1, 2019 as transcribed by Rick Frank.
[6] See page 71, line 26 of the statement of V.H. dated June 12, 2019.