DATE : May 30, 2022 ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JAYRON MATTHEW
Before Justice John North
Reasons for Judgment May 30, 2022
APPLICATION FOR A STAY OF PROCEEDINGS
A. Pancer............................................................... counsel for the Attorney General of Ontario A. Elbaz………………………………...counsel for the Public Prosecution Service of Canada M. Mirza.................................................................. counsel for the Applicant, Jayron Matthew
NORTH J.:
Introduction
[1] On October 30, 2018, the Applicant was charged with a number of firearm and drug offences. On that day, the police executed search warrants and seized a large quantity of drugs, a loaded handgun and some ammunition.
[2] The Applicant brought an application for a stay of proceedings based on prosecutorial and police misconduct. [1] The Applicant asserted that “this entire prosecution has been replete with delicts on the part of the police and prosecution”, and argued that the “aggregate pattern of prosecutorial misconduct throughout these entire proceedings has irreparably breached the Applicant’s right to a fair trial under sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms ”. [2] Counsel for the Applicant also argued that even if the Court was not satisfied that there had been prosecutorial misconduct, the Court should conclude that the Applicant’s right to make full answer and defence had been violated.
[3] Crown counsel argued that the application should be dismissed, as the Applicant provided no evidentiary basis or legal foundation for any of the allegations.
[4] I previously dismissed this application, with reasons to follow. These are those reasons.
[5] Some of the history of this case is set out in my reasons on the s. 11(b) application. [3] There is no reason to repeat the entire history of the case in these reasons.
[6] While it is clear that mistakes were made by the Crown and the police in this case, I am not satisfied that the Applicant has established that Crown counsel engaged in prosecutorial misconduct or that there was police misconduct. I have concluded that the Applicant’s right to a fair trial, including the right to make full answer and defence has not been infringed. Proceeding with the trial would not be harmful to the integrity of the justice system. I see no reasonable basis to stay the proceedings or exclude any of the evidence seized by the police.
[7] An allegation of professional misconduct against counsel is a serious matter. [4] Counsel for the Applicant made multiple allegations of professional misconduct against Crown counsel. In responding to this application, Crown counsel argued that the Applicant’s counsel had engaged in professional misconduct. To decide this application, it is not necessary that I address Crown counsel’s claims regarding the alleged misconduct by the Applicant’s counsel in these reasons. To be clear, I found no basis to conclude that any lawyer involved in this case engaged in professional misconduct.
Stay of Proceedings – Legal Principles
[8] The primary remedy sought by the Applicant is a stay of proceedings. Before I address the arguments advanced by the Applicant, I will briefly review the law in relation to a stay of proceedings.
[9] A stay of proceeding is “is the most drastic remedy a court can order”: R. v. Babos, [2014] 1 SCR 309, 2014 SCC 16, at paragraph 30; R. v. Ke, 2021 ONCA 179, at paragraph 74. It “permanently halts the prosecution of an accused” and denies the public of the opportunity to see justice done on the merits: Babos, at paragraph 30.
[10] There are “rare occasions – ‘the clearest of cases’ where a stay of proceedings for an abuse of process will be warranted”: Babos, at paragraph 31; R. v. Regan, [2002] 1 SCR 297, 2002 SCC 12, at paragraph 53.
[11] Generally, there are two categories of cases where an abuse of process may warrant a stay of proceedings: Babos, at paragraph 31; Ke, at paragraph 76. The first category involves state conduct compromises the fairness of the trial (the “main category”). The second category involves state conduct that, while posing no threat to trial fairness, undermines the integrity of the judicial process (the “residual category”). Counsel for the Applicant argued that both categories were engaged in this case.
[12] In Babos, at paragraph 32, the Court concluded that “the test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements”:
(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the “interest that society has in having a final decision on the merits” (ibid, at para. 57).
[13] While the framework is the same for both categories, the test will often “play out differently depending on whether the ‘main’ or ‘residual’ category is invoked”: Babos, at paragraph 33.
[14] When the main category is invoked, “the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial”: Babos, at paragraph 34.
[15] The Court in Babos, at paragraph 35, stated as follows regarding the residual category:
“By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal norms of fair play and decency and whether proceeding with a trial in the face if that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.”
[16] Usually, the residual category will be invoked as a result of state misconduct, but there are circumstances that “may arise where the integrity of the justice system is implicated in the absence of misconduct”: Babos, at paragraph 37. Stays for abuse of process “are not limited to cases where there is evidence of prosecutorial misconduct”: R. v. Conway, [1989] 1 SCR 1659, 49 CCC (3d) 289, at page 302 (SCC).
[17] In a residual category case, “regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system”: Babos, at paragraph 38.
[18] As stated by Moldaver J. in Babos, at paragraph 39, when considering whether there are alternative remedies capable of redressing the prejudice (the second stage of the test):
“…for cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.” [Emphasis in original.]
[19] The balancing of interests that occurs at the third stage of the test “need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed”: Babos, at paragraph 40.
[20] When the main category (trial fairness) is invoked, “it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required”: Babos, at paragraph 40.
[21] In Babos, at paragraph 44, Moldaver J. stated that “the balancing of societal interests that must take place and the ‘clearest of cases’ threshold presents an accused who seeks a stay under the residual category with an onerous burden”. Moldaver J. also stated at paragraph 44 that “in the residual category, cases warranting a stay of proceedings will be ‘exceptional’ and ‘very rare’”. Moldaver J. explained, at paragraph 44, that this “is as it should be” because:
“It is only where the ‘affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases’ that a stay of proceedings is warranted.”
Disclosure Issues
[22] Counsel for the Applicant argued that there was a pattern of misconduct by the Crown in relation to disclosure which started in the early days of this prosecution and continued throughout the trial. Ms. Mirza asserted that the Crown provided late disclosure, inconsistent responses to disclosure requests and unreasonable responses to disclosure requests. Ms. Mirza stated that the defence has “no confidence in the disclosure process, and there’s no way for the defence to know how much or what other disclosure has not been provided, or the disclosure that has been provided is in fact, accurate.” [5] The Applicant’s counsel also noted that the defence has learned about additional disclosure through the cross-examination of police officers. [6] Counsel cited a number of examples of where this occurred. [7]
[23] One example of inconsistent answers provided by the Crown to disclosure requests involved the defence being repeatedly told that the Crown had already disclosed the notes of the officer who conducted surveillance on October 27, 2018, when in fact those notes had not been disclosed. [8] Another example of inconsistent answers provided by the Crown involved the defence being told that the officer-in-charge of the case was present when the search warrants were originally vetted on November 22, 2018. [9] However, by November 3, 2020 it was apparent that the officer-in-charge did not attend the vetting session on November 22, 2018. [10] After considering all of the evidence, I am not satisfied that there was any attempt by the Crown to mislead the defence about these disclosure issues. I addressed the circumstances surrounding Officer Duran’s involvement in the October 27, 2018 surveillance in in my reasons on the section 8 application. I see no basis to conclude that the Crown intentionally misled the defence about who attended the vetting session on November 22, 2018. Simply stated, based on all of the evidence, I am satisfied that the Crown made a mistake about who attended this meeting.
[24] I will now address some other specific examples of disclosure issues in more detail.
Search Warrant for the Tretheway Drive Apartment
[25] The Applicant took the position that Crown counsel deliberately failed to reveal that on October 30, 2018 police officers executed a search warrant at unit 707, 710 Tretheway Drive (“710 Tretheway”). When I asked in oral argument whether it was the position of the Applicant that Crown counsel was “lying” when she told the Court that she did not know about the search warrant for 710 Tretheway until early June, 2019, counsel for the Applicant responded, “yes.”
[26] After considering all of the evidence, I am not satisfied that Crown counsel intentionally withheld the 710 Tretheway search warrant from the Applicant or attempted to mislead the Applicant’s counsel and/or the Court about what was known by Crown counsel regarding this warrant. I accept Crown’s counsel’s position that this search warrant, in effect, “fell between the cracks.” [11] In my view, Crown counsel had no plausible reason to hide the existence of this warrant from the Applicant. [12] After considering all of the evidence, it is my conclusion that Crown counsel was not aware of this search warrant until it was brought to her attention by the Applicant’s counsel on June 3, 2019. On June 10, 2019, Crown counsel contacted the Applicant’s counsel and advised that she had not previously been aware of the 710 Tretheway warrant and was taking steps to have it unsealed. The search warrant and ITO for 710 Tretheway was provided to the Applicant’s counsel on September 17, 2019.
[27] I have concluded that the police did not deliberately fail to bring the existence of the 710 Tretheway search warrant to Crown counsel’s attention. The search warrant at 710 Tretheway was executed about 26 hours later after the search warrants were executed on the basement apartment at 2535 Eglinton Avenue West and the Applicant’s car. The police seized no evidence in the apartment at 710 Tretheway. [13] Given all of the circumstances, once again, I accept that this search warrant “fell between the cracks.”
[28] The police and Crown should have disclosed the existence of the 710 Tretheway search warrant to the Applicant before June, 2020. Having said that, I am not satisfied that failing to do so prejudiced the interests of the Applicant in a meaningful way or demonstrated a level of carelessness that, by itself or taken together with the other factors relied upon by the Applicant, supports a stay of proceedings.
Disclosure of Forensic/DNA/Fingerprint Materials
[29] Counsel for the Applicant asserted that during a judicial pre-trial on January 21, 2019, Crown counsel advised that there were “no forensic reports to disclose.” [14]
[30] On January 28, 2020, the Crown provided the Applicant’s counsel with some additional disclosure, which included a certificate of analysis for the seized firearm. This certificate was dated February 1, 2019. In an e-mail to the Applicant’s counsel dated January 28, 2020, Crown counsel stated that this document had previously been disclosed, but “out of an abundance of caution” the Crown was sending it again. [15] Counsel for the Applicant asserted that she did not know that this document existed until it was disclosed on January 28, 2020. I am not satisfied that there is sufficient evidence before the Court to conclude that the Crown disclosed this certificate prior to January 28, 2020. However, I do not see how the disclosure of this certificate on January 28, 2020 (over a month before the first day scheduled for the Charter voir dire) caused meaningful prejudice to the Applicant.
The Report of the Drug Expert
[31] On May 12, 2020, the Crown provided the Applicant’s counsel with a report from a drug expert. In the Crown’s factum on this Application, it was asserted that before May, 2020, both Crown counsel “believed that the report had been provided to the Applicant previously.” [16] In oral argument, Crown counsel acknowledged that the failure to provide this report to the Applicant’s counsel before March, 2020 was likely an oversight by the Crown. [17]
[32] Crown counsel argued that, “the only requirement with regard to an expert report is that the report be filed in a timely fashion”, and given that the “trial hadn’t commenced and wasn’t likely to commence in the near future as a result of the pandemic, the report was provided in a timely fashion.” [18]
[33] The Crown was required to provide a copy of the expert’s report to the defence in accordance with the requirements of section 657.3 of the Criminal Code. As Crown counsel recognized, if the trial had completed in March, 2020, “the Crown wouldn’t have been able to prove the drug offences and he (the Applicant) would’ve been acquitted.” [19]
[34] In my view, while it would have been better if the drug expert’s report had been disclosed prior to May, 2020, I do not believe that the Crown was required to disclose it before then. The section 8 and section 10(b) voir dire continued for months after May, 2020. In my view, there was no real prejudice to the Applicant in receiving the expert’s report on May 12, 2020.
Fingerprint Evidence
[35] On October 2, 2020, Officer McKenzie testified that certain items that had been seized during the execution of the search warrants were sent to a lab to test for fingerprints and DNA. Officer McKenzie testified that the results were “negative for both.”
[36] On October 7, 2020, counsel for the Applicant requested that the Crown disclose a copy of the “DNA Fingerprint Report.” The Crown disclosed two “Forensic Identification Services Exhibit Submission Forms”, dated November 2, 2018 and two sets of laboratory case notes of a CFS examiner, dated November 2nd and 7th, 2018, which reflected, “the negative findings of the examinations conducted on the ammunition, firearm, magazine, and ammunition packaging.” [20]
[37] On this application, Crown counsel asserted that there was no DNA report or fingerprint report. [21] Crown counsel stated that “the notes that were disclosed to the Applicant clearly set out that there were no useable fingerprints, and those notes were sent to the Applicant with the original disclosure provided.” Based on the material before this court, I do not see any reasonable basis to conclude that the Crown failed to disclose relevant material regarding DNA or fingerprints in a timely manner. I am satisfied that there was no DNA report or fingerprint report to disclose.
Conclusion Regarding Disclosure Issues
[38] The disclosure process was far from perfect in this case. As I concluded at paragraph 142 in my reasons for judgment on the s. 11(b) application:
“There is no question that, on a number of occasions, it took the Crown too long to provide meaningful responses to defence disclosure requests. The answers provided by Crown counsel to disclosure questions were not always consistent. On occasion, the Crown’s responses to disclosure requests appeared to be somewhat dismissive.”
[39] I did not agree with every position that was taken by Crown counsel during the disclosure applications. [22] I made some disclosure rulings in favour of the Applicant. Mistakes were made by the Crown and the police. Material that should have been disclosed earlier was discovered during the cross-examination of police witnesses. I accept that the inconsistent answers provided by Crown counsel regarding disclosure were frustrating for the Applicant’s counsel. However, I found no reasonable basis to conclude that Crown counsel or the police deliberately withheld disclosure that they knew they were required to disclose or otherwise engaged in conduct that resulted in an abuse of process.
[40] In R. v. Harrer, [1995] 3 SCR 562, at paragraph 45, McLachlin J. (as she then was) stated as follows:
“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 SCR 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 to the accused.”
[41] In this case, the Applicant’s right to a fair trial, including the right to make full answer and defence, has not been compromised as a result of disclosure-related issues. I am satisfied that the Applicant received full disclosure. Further, in my view, the conduct of the police and the Crown did not violate societal notions of fair play and decency. I have concluded that proceeding with this trial would not undermine the integrity of the judicial process. The Applicant has not established that a stay of proceedings is warranted as a result of disclosure-related issues.
Zoom Issue
[42] As I will describe, the Applicant’s position on this issue evolved during the course of the Application. Ultimately, counsel for the Applicant argued that the Crown failed to take appropriate measures to ensure that on September 29, 2020, Officer Duran was not allowed to overhear submissions that were being made by counsel. On that date, all parties participated by Zoom conference. The Applicant’s counsel also argued that Officer Duran entered the Zoom meeting on the morning of September 29, 2020, and listened to the submissions until his presence was noticed by the Court after 2 p.m. Counsel for the Applicant argued that Officer Duran’s testimony that he did not hear any of the submissions by counsel should be rejected by the Court.
[43] Crown counsel took the position that the evidence does not clearly demonstrate that a Zoom user located in a Guns and Gangs office had been admitted into the Zoom meeting. Crown counsel also argued that even if a Zoom account from a Guns and Gangs office had been admitted into the Zoom meeting, the Court should believe Officer Duran’s testimony that he was not, except for a few minutes at around 10:00 a.m., in the witness room with the police laptop, and did not hear any of the submissions that had been made by counsel that day.
[44] To address this issue, it will be necessary to review some of the history of this case.
[45] On September 23, 2020, I dismissed the Applicant’s s. 11(b) application. Later that day, counsel for the Applicant sent an e-mail to my judicial assistant and Crown counsel, which contained a new application. This application asserted that there had been prosecutorial misconduct which resulted in an abuse of process. The Applicant was seeking a stay of proceedings. Prior to that date, counsel for the Applicant had not advised the Court or Crown counsel that she would be bringing an abuse of process application. The Notice of Application stated that this application would be before the Court “by Zoom Conference scheduled on Tuesday, the 29th day of September, 2020 at 10:00 in the forenoon, or as soon thereafter as the Application may be heard.”
[46] Before the abuse of process application was filed, the Charter voir dire (in which it was alleged that the Applicant’s rights under section 8 and 10(a)(b) had been violated) that commenced in March, 2020 was scheduled to continue by Zoom conference on September 29, 2020. [23] In an effort to avoid any additional delay in this case (prior to the Applicant filing the abuse of process application), I prepared a timetable for the motions. The trial coordinator provided the timetable to all counsel on September 1, 2020.
[47] On September 29, 2020, Ms. Pancer, Crown counsel for the Attorney General of Ontario, was counsel on a jury trial and was unable to appear on this matter. Ms. Elbaz, counsel for the Public Prosecution Service of Canada, appeared for the Crown. At the beginning of the day, Ms. Elbaz advised the Court that Ms. Pancer and Ms. Mirza had been involved in discussions in “how things ...would proceed.” I was advised that Ms. Elbaz had not been involved in those discussions, as a close relative had recently passed away and she had been out of the province.
[48] At the outset of the morning, Ms. Elbaz’s told the Court that she was prepared to proceed on “all the applications”. [24] However, Ms. Elbaz stated, “I’m just not sure if we’re on par as to how things exactly are going to proceed this morning.” [25] Ms. Elbaz also stated, “ I was able to speak to Officer Duran, who will probably testify on the s. 7 today, if we’re going to start by that. He’s prepared to do that, but I was not able to speak to Ms. Mirza and this morning I did see there was an email that there’s some issue with Mr. Matthew appearing on Zoom”. [26]
[49] During the course of the day (prior to the discovery that the Zoom line to a Guns and Gangs office was apparently open), Ms. Elbaz mentioned that (i) arrangements had been made for Officer Duran to testify by Zoom; (ii) that “Officer Duran…is available to call in via Zoom”; (iii) and that “Officer Duran is on hold ready to, to be called by Ms. Mirza if that’s how she’d like to proceed.” Ms. Elbaz did not state that anyone from the Guns and Gangs unit was waiting to be let into the Zoom conference.
[50] Later that morning, Ms. Elbaz advised the Court that Ms. Mirza had just informed her that an application for a stay of proceedings based on prosecutorial misconduct had been filed. Ms. Elbaz had been away on bereavement leave, and she stated that she did not know about the prosecutorial misconduct application. Ms. Elbaz also told the Court that, during a morning break, she had spoken with Ms. Pancer, who was also unaware of this application. Ms. Elbaz and Ms. Pancer expressed surprise that this application was before the Court.
[51] I reminded the Applicant’s counsel that I had imposed a timetable for the hearing of the applications. I asked Ms. Mirza why the possibility of a prosecutorial misconduct application was not mentioned until after I dismissed the s. 11(b) application on September 23, 2020. Ms. Mirza acknowledged that she had prepared the prosecutorial misconduct application prior to September 23, 2020, and that it was “ready to go pending Your Honour’s ruling on the s. 11(b).” [27] In explaining why this application had not been mentioned earlier, Ms. Mirza stated as follows:
“…when we started preparing the actual s. 8 argument and we started looking at the rest of all the documents that the Crown had provided, that’s when it actually - that’s when it triggered with the defence that the document was improperly filed and it [the prosecutorial misconduct application] was prepared immediately when it came to our attention and followed – immediately following Your Honour’s ruling is when it was filed.” [28]
[52] After the lunch break on September 29, 2020, both counsel were making submissions about how to proceed with the applications that were before the court. I noticed that one of the boxes in “Gallery view” video layout of the Zoom conference was described as “Witness 3”. [29] “Witness 3” did not have their camera on. I asked “Witness 3” to identify himself or herself. I did not receive a response to my question. The Court clerk stated, “that’s been there all day, Your Honour. There’s nobody logged into that.” [30] I asked Ms. Elbaz if “Witness 3” was a Crown witness. Ms. Elbaz responded, “I’m just going to text him right now to see.” A short time later, Ms. Elbaz advised the Court, “I’m just waiting for his response”, and then stated, “I’m just going to mute myself and call him to see what’s going on, please.” Ms. Mirza expressed concern that if “Witness 3” was an officer in this case, he or she has been listening to submissions.
[53] A few moments later, Ms. Elbaz stated:
“I just spoke to Officer Duran and he explained to me that he’s at Guns and Gangs because Ms. Pancer arranged for him to be, to be able to testify by Zoom at Guns and Gangs. So Roger, who I guess is the IT person at Guns and Gangs logged, logged Officer Duran in and Officer Duran has been waiting in the hallway with the door closed the entire time…but I guess the way they do it at Guns and Gangs – I’m calling from home. I’m not at Guns and Gangs. Is that they set up for officers to come in one at a time but they log in the morning and then they wait in the hallway in a closed door. So that’s what he explained to me. That’s how Zoom proceedings are happening there.” [31]
[54] Ms. Mirza stated that she did not “understand why the officer is – has even joined in on the call when we haven’t even gotten to a point where we’re requesting to proceed with a certain application in order for the officer to even be present as a witness.” [32] Ms. Elbaz, once again, stated that Ms. Pancer “had organized for him (Duran) to come to Guns and Gangs (to testify from that location)”. [33] Ms. Elbaz stated that she had been told that Officer Duran had not been in the room with the camera and did not know “what was going on in there”.
[55] After that, for a few minutes, the parties returned to the issue that was being addressed before I had noticed “Witness 3”. I indicated that “Witness 3” was still in the Zoom conference and suggested that “we could ask Guns and Gangs to shut that line down.” Ms. Mirza once again indicated that it was her understanding that no witnesses were required for that day. Ms. Elbaz asked if she could “mute myself again and call Officer Duran.” While Ms. Elbaz was making this call, Ms. Mirza requested to be given “a few minutes to go off camera” to speak with a colleague. I waited in the Zoom conference while Crown counsel and the Applicant’s counsel made their phone calls.
[56] A short time later, Ms. Elbaz returned to the Zoom conference. Before Ms. Mirza returned, a voice was heard that was attributed to the Zoom user described as “Witness 3”. “Witness 3” could not be seen on video. I asked who was speaking, and the person responded, “Oh sorry, Justice North. It’s Roger the support for the witness. So I’m just going to leave the meeting.” [34] The Court clerk responded, “Leave the meeting?” I asked “Roger” not to leave until Ms. Mirza returned. “Roger” indicated that his last name was Ho Lung. After Ms. Mirza returned, I explained what had happened in her absence. Ms. Elbaz then stated:
“Just at the break, just to explain at the break, I did call Officer Duran and I asked – he was in the cafeteria of Guns and Gangs and I asked him to ask the IT person to turn off whatever was on.” [Emphasis added.] [35]
[57] I asked Ms. Mirza whether she would like to have the “Witness 3” line closed, and she indicated that she would. Mr. Ho Lung stated that he would “close the line”, and after that, “Witness 3” left the Zoom meeting.
[58] In an “Addendum to Notice of Application to Section 7 of the Charter”, dated October 8, 2020, counsel for the Applicant argued that the “covert presence of the affiant (Officer Duran)” on September 29, 2020 “has created more than a taint of impropriety, especially when no one can confirm the length of time the affiant was watching the proceedings other than the affiant himself, and his credibility has already been placed in issue.”
[59] In oral arguments on November 3, 2020, counsel for the Applicant took the position that Crown counsel arranged for Officer Duran to attend by Zoom to improperly listen to submissions for the purpose of gaining an advantage when giving his evidence. [36]
[60] Ms. Mirza later clarified the position of the Applicant. Ms. Mirza stated that she was not arguing that the Crown deliberately set up a situation which allowed Officer Duran to improperly hear the submissions of counsel. Instead, Ms. Mirza argued that the “Crown did not properly safeguard the exclusion of the witness order…by not advising the court of P.C. Duran’s presence, and nor advised defence counsel, nor set up proper protocols or to watch the door…at Guns and Gangs.”
[61] Counsel for the Applicant requested that the Court obtain a copy of the Zoom logs/records of the proceedings on September 29, 2020. With the assistance of Court’s IT staff, these records were obtained and provided to the Applicant’s counsel and Crown counsel.
[62] Counsel for the Applicant called Martin Musters as a witness. He was qualified as an expert in computer forensics for the purpose of interpreting the Zoom logs/records for “Virtual Courtroom 4” on September 29, 2020. [37]
[63] Mr. Musters testified that “there are two records that are generated by the Zoom logs.” The first record is generated when a participant enters a Zoom waiting room. The second is generated when a participant is transferred or allowed by the host to go from the waiting room into the Zoom conference. In arriving at his opinion, Mr. Musters ran a number of tests. He also conducted a demonstration which supported his conclusions. Mr. Musters came to the following conclusions regarding “Witness 3”:
- “Witness 3” initially entered the Zoom waiting room at 10:25 a.m. on September 29, 2020.
- “Witness 3” left the Zoom waiting room at 10:28.56 a.m. and was admitted by the “host” to the Zoom conference at 10:28.57 a.m.
- “Witness 3” remained in the Zoom conference from 10:28.57 a.m. until 3:11.43 p.m.
[64] Mr. Musters could not say whether, in relation to “Witness 3”, a person was “sitting in front of the screen” from 10:25 a.m. to 3:11.43 p.m. Mr. Musters testified that the person could “theoretically, get up and go to another room. We have no idea.”
[65] Mr. Musters testified that a participant in a Zoom conference (as opposed to the host) can see the other participants who had been admitted into the Zoom conference, but cannot see who is in the waiting room. Only the host can see who is in the waiting room. The host has the ability to admit or remove a participant. The host also has the ability to close a meeting. It was Mr. Muster’s understanding that the Court clerk was the host of the Zoom meeting on September 29, 2020.
[66] Mr. Musters was a highly qualified witness. He was also objective and credible. He carefully explained how he arrived at his conclusions. The tests that he conducted made sense and supported his conclusions. His conclusions were not undermined during cross-examination.
[67] The Court clerk was the “host” of the Zoom meeting on September 29, 2020. She controlled access to the Zoom conference. While the Court clerk believed that “Witness 3” had not been admitted into the Zoom conference, I have concluded that the clerk was mistaken. The evidence that I accept clearly establishes that “Witness 3” had been admitted into the Zoom meeting from the waiting room at 10:28.57 a.m. and remained in the meeting until 3:11.43 p.m. In fairness to the clerk, the Ontario Court of Justice had only been using Zoom for a short period of time prior to September 29, 2020. It was a technology that most people were just becoming familiar with. I have concluded that the Court clerk made an innocent mistake and inadvertently admitted Witness 3 into the Zoom meeting at 10:28.57 a.m.
[68] Having concluded that “Witness 3” had been in the Zoom meeting from 10:28.57 a.m. until 3:11.43 p.m., the next question is whether Officer Duran was listening to what was being said by counsel and the Court during that period.
Evidence of Adrian Duran
[69] The Crown called Officer Duran as a witness on this application.
[70] Officer Duran testified that sometime before September 29, 2020, he was told by Crown counsel to attend the building where the Guns and Gangs unit is located. He said that he was told that he may be required to testify by Zoom that day in relation to an affidavit that he swore earlier that month.
[71] Officer Duran testified that prior to September 29th he testified by Zoom on one previous occasion. According to Officer Duran, he did not know how to “set up a computer to Zoom in for a Zoom trial.”
[72] Officer Duran testified that when he arrived at the Guns and Gangs building, he met a man named “Roger” (Roger Ho Lung) who was going to “help me with the room, take me to the room and set up the computer.”
[73] Officer Duran said that when he arrived at the building he did not know where this room was located. In cross-examination, Officer Duran said that he “would have met” Mr. Ho Lung inside the front entrance of the Guns and Gangs building. He could not recall where he obtained the information that Mr. Ho Lung would be the person who would take him to the witness room. Officer Duran had never met Mr. Ho Lung before September 29, 2020.
[74] Officer Duran testified that after he met Mr. Ho Lung, he was taken down a hallway to an area “with a bunch of offices”. At about 10:00 a.m. he was brought into a room that “said Witness Room 3”. According to Officer Duran, Mr. Ho Lung “logged onto the computer, said that it was all set to go and told me that I had to wait to be invited in by the clerk of the court.”
[75] Officer Duran testified that after that, he went “back outside, down the hall and there’s a cafeteria at the front of the building and I waited there.” Officer Duran stated that he did not go back to Witness Room 3 that day. When asked by Crown counsel why he left the witness room to go to the cafeteria, he stated, “Ms. Elbaz was going to tell me when I was required, so I didn’t feel the need to stay in the room there.” In cross-examination, Officer Duran testified that “just like any court matter it doesn’t start right at ten o’clock”, and he was waiting for the Crown to call him to say when he would be required. He added, “I didn’t feel the need to stay in the room.”
[76] Officer Duran was asked by Crown counsel if, at any point during the day, he left the cafeteria. Officer Duran answered, “I did, yes. I went out. I was told when the break was for lunch. I had gone and done some errands. I got some lunch for myself and then came back.” Crown counsel asked Officer Duran how he was made aware of what was going on in court, and he replied, “Ms. Elbaz could contact me, call me and say that they’re down for lunch and when I should be back.”
[77] According to Officer Duran, he expected to receive a phone call when he was required to testify. He said that he would have gone to Witness Room 3 after receiving that call.
[78] Officer Duran testified that “sometime after the lunch break”, while he was in the cafeteria, he received a phone call from Ms. Elbaz. According to Officer Duran, Ms. Elbaz asked him if he was in the witness room, and he told her that he was not. Officer Duran also testified as follows:
“She (Ms. Elbaz) told me that Her Honour [sic] was making inquiries, that there was something on that end to cause a question. And then I said I would call Roger and I would send him in to inquire about what was going on.”
[79] According to Officer Duran, after the telephone conversation with Ms. Elbaz, he called Mr. Ho Lung. Officer Duran testified that he was in the cafeteria when he made the call to Mr. Ho Lung. Officer Duran could not recall who gave him Mr. Ho Lung’s phone number. In cross-examination, when asked what he told Mr. Ho Lung during this phone conversation, Officer Duran testified as follows:
“I said I got a call from the Crown that’s inside the Zoom right now. There is something going on where His Honour’s asking questions. Can you please go down and figure out what’s going on. And not verbatim in that, I am just going from the top of my head. It would have been something along those lines.”
[80] According to Officer Duran, he did not tell Mr. Ho Lung that he “wanted his help to leave the meeting.”
[81] Officer Duran testified that he later saw Mr. Ho Lung in the cafeteria.
[82] Crown counsel asked Officer Duran, “…with regards to the 29th of September, when were you in that witness room?” Officer Duran responded, “I was in there when I walked in with Roger and then I walked out. So that was the time that I was in there.” He testified that he did not recall being invited into the Zoom meeting. Officer Duran stated that he “left shortly after he (Mr. Ho Lung) logged on and did whatever he did on the computer.” He added, “I wasn’t in the, the court, if that’s the question.” According to Officer Duran, he was only in Witness Room 3 for “whatever time it took him (Mr. Ho Lung) to log in.” He added, “I would say that it was a couple of minutes at the most. It wasn’t long.”
[83] When asked by Crown counsel how he knew that “court ended for the day”, Officer Duran testified as follows:
“Ms. Elbaz called me. She hasn’t released me, so I was waiting around until I received a call sometime after 4:00 saying that I wouldn’t be going up on the day of.”
[84] In cross-examination, Officer Duran could not recall when he was first told that he may have to give evidence on September 29, 2020. When he was asked who advised him that he “may or may not have to testify” on September 29, 2020, he responded it “would have been Ms. Elbaz.” He also said that this would have happened after he swore out the affidavit, which occurred on September 25, 2020. During the course of Officer Duran’s evidence, Ms. Elbaz advised the Court that she knew Officer Duran would be attending court (remotely) on September 29, 2020, but added “of course I didn’t know if anyone was on the line or not on the line.”
[85] In cross-examination, Officer Duran denied the suggestion that Mr. Ho Lung told him to wait in Witness Room 3 until he was invited into the Zoom meeting by the court clerk. Officer Duran testified that he had to “wait to be invited in” (to the Zoom meeting), but he did not have to remain in Witness Room 3 until he was called by Crown counsel.
[86] Ms. Mirza cross-examined Officer Duran about some statements made by Ms. Elbaz to the Court on September 29th, in which Ms. Elbaz said it was her understanding that Officer Duran had “been waiting in the hallway, with the door closed the entire time.” Officer Duran responded that he did not recall telling Ms. Elbaz that he was waiting in the hallway outside of Witness Room 3.
[87] Officer Duran testified that he saw “plenty of individuals” in the cafeteria on September 29, 2020, but he did not recall seeing anyone who he was familiar with.
[88] Officer Duran denied the suggestion put to him in cross-examination that he was in Witness Room 3 with Mr. Ho Lung when the “microphone was unmuted”. He also denied the suggestion that he “never left the room that morning” and that he only left Witness Room 3 after he received a call from Crown counsel.
Evidence of Roger Ho Lung
[89] Roger Ho Lung was called as a witness by the Crown. Mr. Ho Lung is the IT coordinator with the Guns and Gangs unit. On September 28, 2020, Ms. Pancer sent an e-mail to Mr. Ho Lung advising him that “Adrian Duran is the witness for tomorrow and will need you or someone to let him in and set him up.” A short time later, Mr. Ho Lung sent an e-mail to Ms. Pancer and stated that they will use “Witness Room. 3”, and “will set up the room when you provide me/Kenni with the Zoom trial meeting information. The sooner the better so I can leave the laptop at the ‘Join Meeting’ screen.”
[90] Mr. Ho Lung testified that “we started using Zoom for trials” in July, 2020. The Guns and Gangs unit had three witness rooms, which were all located in the same building. Each of these rooms had a laptop and “the Zoom shortcut on its screen.” He testified that in September, 2020 the laptops “were always in the room [sic] permanently”. Mr. Ho Lung said that “all we do is login to the machine and login to the Zoom meeting and that’s it. There is nothing else that needs to be done.”
[91] Crown counsel asked Mr. Ho Lung about the procedure he followed on September 29, 2020 to “set up the Zoom room for this trial.” Mr. Ho Lung said that “it’s as we normally do for every trial.” Mr. Ho Lung testified that “a little bit before the trial time which is usually about ten o’clock or the time that the witness is coming in, in this case on the 29th, it was, it was set for ten.” Mr. Ho Lung went on to state as follows:
“So, all I had to do is at around nine-thirty, nine forty-five, which is about 15 minutes before start, if there is no one in the room, in this case I think, I am not ever sure if Adrian, the witness, was here at this time but what happened was that I basically login to the machine, put in a Zoom meeting information, the ID, and then the password. I usually typically leave the, the name of the participant as ‘Witness’ because the person’s going to be sworn in anyway so we usually leave our, our laptops in as ‘Witness’, and then we just type in the meeting code, the passcode, and we leave the screen where it says waiting for host to let the participant into the meeting, in which we will hand off the room to [indiscernible] or to the OIC.”
[92] Crown counsel asked Mr. Ho Lung if he controlled when a witness is let into a Zoom meeting, and he replied, “No. Absolutely not. We have no control of that whatsoever.” It was his understanding that a participant can only be let into a meeting by the host of the meeting. [38]
[93] Mr. Ho Lung testified that on September 29, 2020, he “set up the Zoom room”, and “left the computer at the waiting for host to let the participant in screen and left it for the witness to sit in front of until the host of the trial let that, let him into the meeting.”
[94] In cross-examination, Mr. Ho Lung testified that he could not recall whether Officer Duran was in the room with him when he set up the computer, but stated that (because of COVID) “it’s most likely that he may have been waiting outside for me to get it in and then I would invite him to come and sit in front and wait for you to let him in.”
[95] Mr. Ho Lung also testified that he “left the witness there and went about my other duties because this is just a standard practice. We do, we just leave the witnesses in the room and it’s up to the host or the court clerk to decide when to let the witness in and it’s no longer my concern as to how the, the trial is managed, how the witnesses be managed in a courtroom.”
[96] Mr. Ho Lung testified that he “let [Officer Duran] into my space and then I went to join the meeting for him.” Mr. Ho Lung also testified “I believe I had gotten the witness room already waiting for the host to let him in and then invited him to sit down in front of the computer.” According to Mr. Ho Lung, he left Officer Duran in front of the screen, waiting for the host to allow him to join the meeting. After that, according to Mr. Ho Lung, he left the witness room to take care of other IT business.
[97] In an e-mail sent by Mr. Ho Lung to Ms. Pancer, Ms. Elbaz and Officer Duran at 10:34 a.m. on September 29, 2020, Mr. Ho Lung stated, “He is good to go. Waiting to be allowed into the trial by the clerk…”. Ms. Elbaz later told the Court that she did not see this e-mail until that evening.
[98] Mr. Ho Lung testified that at “about two-thirty-ish, thereabouts”, he received a phone call from Officer Duran, who asked that Mr. Ho Lung:
“…go directly to the room because he was not going to go to the room and he had left the room since that morning, right, and has been waiting in our cafeteria area which I had no idea about. So, he asked me to come to the room to log out or leave the meeting because he had no intention to go to the room himself and he needed someone who was, I guess, not part of the, trial to do so.”
[99] Mr. Ho Lung recalled that he was on the second floor of the building when he received the call. Mr. Ho Lung testified he told Officer Duran that he would immediately go to Witness Room 3. He recalled that Officer Duran said that it was urgent that “I leave the meeting.”
[100] In an e-mail written by Mr. Ho Lung on September 30, 2020, he stated that during this telephone conversation, Officer Duran said he was “in the waiting in the building’s common area and was not going to enter the witness room or the section of the building unless given express instructions to do so by the clerk.”
[101] Mr. Ho Lung testified as follows:
“Well, it’s funny because when Officer Duran asked me to leave the meeting I said, oh, you can just press the leave button and leave the meeting if you, if you needed to and he said that he has, he had left that room since the very, very morning and he had no intention to go back in it and that he has been waiting in the cafeteria, right, and, so he would appreciate it if I could go in and leave the meeting for him.”
[102] According to Mr. Ho Lung, it took him about five minutes to walk from the second floor of the building to the witness room. Mr. Ho Lung testified that as he walked to Witness Room 3, he “passed Officer Duran in the common lunch cafeteria”, which is outside of the restricted access area. Officer Duran was sitting by himself. Mr. Ho Lung said that the length of his interaction with Officer Duran in the cafeteria was two to three minutes. Mr. Ho Lung testified that while in the cafeteria, he told Officer Duran that he could have “pressed the leave button”. According to Mr. Ho Lung, Officer Duran said that he had “been outside of that witness room for, since the morning.”
[103] Later in cross-examination, Mr. Ho Lung said that his memory of when he obtained some of the information from Officer Duran was a “general recollection”, and stated that he had “lumped the overall picture together” (the phone call with Officer Duran and talking to Officer Duran in the cafeteria).
[104] Mr. Ho Lung testified that he had no idea where Officer Duran was or what he was doing between 9:50 a.m. until approximately 2:45 p.m.
[105] When Mr. Ho Lung arrived at Witness Room 3, after speaking with Officer Duran in the cafeteria, the door was closed and no one was inside the room.
[106] According to Mr. Ho Lung, when he entered Witness Room 3, “the mic [was] muted as well as the video was also turned off.” Mr. Ho Lung stated that after entering Witness Room 3, he “went to close the meeting”, but instead of pressing the button to leave the meeting he “inadvertently pressed” either the “video or audio button”. Mr. Ho Lung testified that it was at that point he was asked by the Court to identify himself.
[107] In cross-examination, Mr. Ho Lung testified that Witness Room Number 3 is located next to his office on the first floor of the building. According to Mr. Ho Lung, this area is not accessible to members of the Guns and Gangs unit, as they do not have a security access card for the area. In order to get into that area, a police officer would have to be let in by a person who had “card access”. Mr. Ho Lung testified that while police officers did not have access cards to the area, IT staff, a financial analyst, cleaners, and staff from the Crown’s office had access cards.
[108] In cross-examination, Mr. Ho Lung testified that after he spoke to Officer Duran in the cafeteria, he was alone when he entered Witness Room 3. According to Mr. Ho Lung, when he was in Witness Room 3 he was speaking on his cell phone to someone. Mr. Ho Lung testified that the cell phone conversation was unrelated to this matter. According to Mr. Ho Lung, he may have been using the speakerphone function on his phone at the time. Mr. Ho Lung denied Ms. Mirza’s suggestion that there was another person in Witness Room 3 with him at the time.
[109] In cross-examination, Mr. Ho Lung testified that after I asked him to identify himself, he turned on the computer’s video camera. He recalled that I asked him to do so. The transcript from September 29, 2020, reveals that I did not ask Mr. Ho Lung to turn his camera on. Mr. Ho Lung was not seen by other participants in the Zoom meeting on that date.
Conclusions on the Zoom Issue
[110] For the following reasons, I am not satisfied that Crown counsel did anything improper in relation to the arrangements that were made to have Officer Duran testify by Zoom on September 29, 2020.
[111] First, in my view, Crown counsel could not have reasonably foreseen that “Witness 3” might inadvertently (and without the knowledge of the Court or any of the lawyers), be admitted from the waiting room into the Zoom meeting by the Court clerk. Counsel for the Applicant reasonably acknowledged that “if the host (of a Zoom meeting) lets (a witness) in, that’s beyond the control of the Crown or the police.” [39]
[112] Second, I have concluded that Crown counsel had one objective in arranging to have Officer Duran available to testify by Zoom on September 29, 2020 – to ensure that Court time was used efficiently. I am satisfied that Crown counsel believed that Officer Duran might be called as a witness on September 29, 2020. As previously stated, on September 29, 2020, Ms. Elbaz mentioned on more than one occasion that Officer Duran was ready to give evidence that day.
[113] Third, by September, 2020, a relatively small number of lawyers in Ontario had conducted a trial using the Zoom platform. Ms. Elbaz told the Court that she had “never done a Zoom hearing” before September 29, 2020. [40] Counsel for the Applicant agreed that “we were still in (the) very early days of Zoom trials” on September 29, 2020. [41] Some judges in Ontario had already provided guidance on steps that should be taken when trials were conducted by Zoom. It was my intention to address that issue before the first witness was called to testify in September 2020. [42]
[114] I will now set out my credibility and reliability findings with respect to Mr. Ho Lung and Officer Duran. In many respects, their testimony was consistent with each other. Of course, that only goes so far, as (according to them) they did not see each other between approximately 10:00 a.m. and 2:45 p.m.
[115] There was at least one notable subject in which their evidence was not consistent. Mr. Ho Lung recalled that Officer Duran called him on his cell phone at about 2:45 P.M. to ask if Mr. Ho Lung could help him “leave the (Zoom) meeting.” Officer Duran testified that he did not ask Mr. Ho Lung to help him leave the Zoom meeting. I accept Mr. Ho Lungs evidence on this point. Based on all of the evidence, I have concluded that Officer Duran called Mr. Ho Lung and asked for his assistance to “leave the meeting”. Officer Duran contacted Mr. Ho Lung after speaking to Ms. Elbaz. Ms. Elbaz told the Court that she told Officer Duran to ask the IT person “to turn off whatever was on”. In my view, Mr. Ho Lung could only have learned of the request to “leave the (Zoom) meeting” from Officer Duran. However, I am not satisfied that Officer Duran intentionally misled the Court on this subject. I see no reason why Officer Duran would think that it would benefit him to intentionally mislead the court by testifying that he did not tell Mr. Ho Lung to close the Zoom connection. In my view, Officer Duran had nothing to gain by admitting (if he remembered) that he told Mr. Ho Lung (at the Crown’s request) to leave the Zoom meeting. I have concluded that Officer Duran was simply mistaken about what he said to Mr. Ho Lung during their telephone conversation. I find that Officer Duran forgot that he told Mr. Ho Lung to close the Zoom link. I do not accept that Officer Duran deliberately provided false evidence.
[116] I found Mr. Ho Lung was a credible witness whose testimony was not meaningfully undermined on any material matters. [43] I accept Mr. Ho Lung’s testimony that when he was in Witness Room 3 in the morning, Officer Duran had not been let into the Zoom meeting. I also accept his evidence that Officer Duran was not in Witness Room 3 when Mr. Ho Lung accidently unmuted the microphone on the computer.
[117] While I have concerns about the reliability of some specific parts of Officer Duran’s testimony, I found that he was a credible witness. Elsewhere in this section, I address the specific areas of Officer Duran’s testimony for which I have some concerns regarding the reliability of his evidence. However, in my view, overall, Officer Duran’s testimony made sense and was not significantly undermined in cross-examination. I believe Officer Duran’s testimony that he left Witness Room 3 shortly after Mr. Ho Lung set up the computer and did not return to the room for the rest of the day.
[118] As previously stated, on September 29, 2020, Ms. Elbaz advised the Court that it was her understanding Officer Duran had been “waiting in the hallway with the door closed.” This information was provided by Ms. Elbaz shortly after I noticed “Witness Three” in the Zoom meeting. Just before she provided this information to the Court, Ms. Elbaz “put (herself) on mute” and had a brief telephone conversation with Officer Duran. A short time later, Ms. Elbaz had another conversation with Officer Duran who told her that he was in the cafeteria. Officer Duran testified that he was waiting in the cafeteria on September 29th. In cross-examination, Officer Duran was asked if he told Ms. Elbaz that he was “waiting in the hallway with the door closed the entire time”. Officer Duran responded as follows, “I can’t answer for her. I said that I was down the hall so there is [sic] many hallways.” After some additional questions, Officer Duran testified that he did not recall telling Ms. Elbaz that he was waiting in the hallway with the door closed (“outside the witness room”).
[119] I am satisfied that the information initially provided by Ms. Elbaz to the Court that Officer Duran was “in the hallway” was a miscommunication. In my reasons for judgment on the section 8 Charter application, while I found that Officer Duran was a credible witness, I concluded that during the investigation he demonstrated, on more than one occasion, an inattention to detail. It was my view that, at times, Officer Duran failed to appreciate the importance of providing precise answers to questions. I also concluded that while testifying on the Charter voir dire Officer Duran provided at least one answer that was not “carefully considered”. In my view, it is entirely possible that the initial miscommunication about Officer Duran’s location was the product of a lack of clarity and/or precision on Officer Duran’s part when speaking to Ms. Elbaz coupled with Ms. Elbaz’s effort to quickly provide the Court with information. [44] However, in my view, it is not necessary to definitively determine how this miscommunication occurred.
[120] After considering all of the evidence, I accept Officer Duran’s evidence that he did not return to Witness Room 3 after he left the room at approximately 10:00 a.m. and that he did not hear any of the submissions that were made that day.
Crown Counsel Filing “Source Notes”
[121] On February 24, 2020, counsel for the Applicant asked Crown counsel what materials had been filed by the Crown in response to the Charter application. The same day, Crown counsel sent an e-mail to the Applicant’s counsel advising that the Crown would be filing the following documents: 1) Proposed Judicial Summary; 2) 2535 Eglinton Avenue East & Honda Civic CFNL349 ITO: Marked for Redaction; 3) 2535 Eglinton Avenue East & Honda Civic CFNL349 ITO: Redacted; 4) 710 Trethewey Drive Apartment 3 706 ITO: Marked for Redaction; 5) 710 Trethewey Drive Apartment 3 706 ITO: Redacted; 6) Source Notes from the Affiant Unredacted; 7) Source Notes from the Affiant Redacted; 8) Source Documents Relied Upon by the Affiant Unredacted; 9) Source Documents Relied Upon by the Affiant Redacted.
[122] After receiving the Crown’s response, counsel for the Applicant requested a summary of the affiant’s source notes, which Crown counsel provided later that day. The Applicant’s counsel did not tell Crown counsel that this material should not be provided to the Court before the trial commenced.
[123] Before the first day of the trial, Crown counsel sent the Court a sealed envelope which contained a bound document. [45] The cover page of the document stated, “Confidential Do Not Disclose”. The document itself contained the nine items that the Crown had previously advised the Applicant’s counsel would be provided to the court.
[124] On the first day of the trial, Crown counsel filed a copy of the “Confidential Do Not Disclose” document. Crown counsel asked that the document be placed into an envelope and marked as a sealed exhibit. It was marked as Sealed Exhibit One. Crown counsel described the contents of the document on the record. Crown counsel indicated that the Crown would be invoking Step Six on the Garofoli application, and would be referring to the contents of Sealed Exhibit One during the course of the hearing. Crown counsel provided the following brief explanation for why the Crown sent the document to the Court before the trial commenced:
“We had a judicial pre-trial, it was discussed. My hope was that Your Honour would have time to review it in advance so that when we started today, we wouldn’t have to go down for you to look at it for the first time.” [46]
[125] During this discussion on March 2, 2020, I asked counsel for the Applicant if she was aware that the Crown had previously sent the Court a copy of Exhibit One, and Ms. Mirza confirmed that she knew that had occurred. Counsel for the Applicant did not suggest that Crown counsel should not have provided the Court with a copy of this document before the trial.
[126] The first time that Ms. Mirza took the position that the affiant’s source notes should not have been provided to the Court was over five months later. On this application, Ms. Mirza argued that by providing the Court with the affiant’s source notes before the commencement of trial the Crown effectively created an additional in camera proceeding and “irreparably harmed” the appearance of fairness.
[127] I do not agree with the Applicant’s position. I accept Crown counsel’s explanation for why these materials were filed prior to March 2, 2020. While it clearly would have been more prudent for Crown counsel to have obtained the written consent of the Applicant’s counsel to file the affiant’s source notes, given all of the circumstances, I do not see how filing these materials before March 2, 2020 irreparably harmed the appearance of fairness or demonstrates that Crown counsel engaged in prosecutorial misconduct.
[128] Once again, before the trial began Crown counsel advised the Applicant that the Crown would be filing the affiant’s source notes. On the first day of the trial, the Applicant’s counsel said nothing to suggest that the Crown should not have provided these materials to the Court before the trial commenced. Over five months went by before the Applicant expressed any concern about the Crown sending Sealed Exhibit One to the Court. In my view, if the Applicant had any concerns about Sealed Exhibit One being provided to the Court before the first day of the trial, they would have been raised long before August, 2020.
[129] In the end, Crown counsel did not rely on the affiant’s source notes in support of the argument that the search warrants were validly issued. During oral argument, counsel for the Applicant did not dispute that I could disabuse my mind of the contents of the affiant’s source notes.
[130] I see no merit to this argument.
Crown Counsel Filing the Affidavit of Officer Duran
[131] In the ITOs, Officer Duran, who was the affiant, stated that on October 27, 2018, an officer with the Guns and Gangs unit attended the target address and observed the target vehicle parked behind the building. The name of the officer who conducted the surveillance on October 27, 2018, was not mentioned in the ITO.
[132] On April 14, 2019, counsel for the Applicant sent a letter to Crown counsel which contained a number of disclosure requests. One of the item sought by the Applicant was disclosure of the surveillance notes from October 27, 2018. A number of additional disclosure requests were later made for those surveillance notes. On September 17, 2019, the Crown disclosed the surveillance notes that Officer Duran said that he made on October 27, 2018. This was well after the Crown had disclosed the notes of the other officers involved in this case.
[133] I granted leave to cross-examine Officer Duran. During the cross-examination on March 17, 2020, Officer Duran had the April 14th, 2020 disclosure letter with him in court. Officer Duran testified that he had previously provided Crown counsel with answers, in writing, to the requests contained in the April 14, 2020 disclosure letter.
[134] On August 16, 2020, counsel for the Applicant filed a disclosure application. Ms. Mirza argued that additional disclosure was required for the s. 8 challenge to the search warrants. Ms. Mirza asserted that there was a reasonable basis to conclude that Officer Duran “fabricated the October 27th, 2018 surveillance relied upon in the ITO to support his grounds.” [47] Ms. Mirza requested that the Crown disclose a copy of Officer Duran’s response to the Crown (in relation to the April 14, 2019 disclosure letter). It was argued that Officer Duran’s response to the Crown was relevant since Officer Duran first identified himself to the Crown as the officer who conducted the surveillance on October 27, 2018 many months after he received the Applicant’s disclosure letter dated April 14, 2019.
[135] Prior to August 16, 2020, Crown counsel had refused to disclose Officer Duran’s response. Crown counsel took the position that Constable Duran’s correspondence with the Crown was privileged. In correspondence with the Applicant’s counsel, Crown counsel added as follows:
“The response that was provided to you incorporated all of the information that was provided to the Crown through correspondence with the affiant and the OIC. With regard to item number four Officer Duran advised the Crown that all surveillance reports had been disclosed, that there was no surveillance report for the 27th and that he believed that the officer who had observed the surveillance on the 27th disclosed those notes. As a result of his response I requested any outstanding notes for the 27th from the OIC as I was not in possession of those notes. Further, I was not aware at that time that it was in fact DC Duran who had made those observations and based on his response to me, it appears he also didn’t recall that he had made those observations.”
[136] Crown counsel ultimately provided the Applicant’s counsel with the answer that Officer Duran had provided to the Crown in relation to the defence request for the surveillance notes of October 27, 2018.
[137] I was advised that there were multiple e-mails between counsel about the possibility of preparing an agreed statement of facts with respect to Officer Duran’s response to the Crown. According to Crown counsel, “the Applicant simply wanted the response in the e-mail filed, and the Respondent wanted an agreed statement of facts to explain the circumstances surrounding the response.” [48] By September 29, 2020, these discussions had not resulted in an agreed statement of facts.
[138] On September 25, 2020, Crown counsel sent the Court an affidavit of Officer Duran. In this affidavit, Officer Duran provided an explanation for the late disclosure of the notes he said that he had prepared while conducting surveillance on October 27, 2018. This affidavit was an attachment to an e-mail that was sent by Ms. Elbaz to Ms. Mirza, Ms. Pancer and my judicial assistant. In this e-mail, Ms. Elbaz wrote as follows, “Attached please find an affidavit from Sgt. Duran. The Crown will be relying on this affidavit for the disclosure application.”
[139] In the Crown’s factum filed on the prosecutorial misconduct application, Crown counsel stated that the affidavit was prepared and filed with the Court for the following reasons:
“In anticipation of the Applicant’s disclosure request for the Affiant’s e-mail correspondence with the Respondent, the Respondent requested that the Affiant draft an affidavit explaining the circumstances surrounding the email that was the source of contention by the Applicant. Since the Applicant had to make an application to call the Affiant in order to prove the veracity of the email he sought to tender, it was the Respondent’s position that the Affidavit could stand for his evidence in chief.”
[140] On this application (the prosecutorial misconduct application), the Applicant’s counsel argued that Crown counsel improperly filed Officer Duran’s affidavit. Ms. Mirza argued that Constable Duran’s affidavit was filed without prior notice, that there was “no jurisdiction to file the affidavit that was not filed in support of a Crown application for which notice was given” and “it could only have been filed to influence the Court.”
[141] On September 29, 2020, Ms. Elbaz told the Court that she was “not aware that there was going to be an application that the affidavit was improperly filed.” Ms. Elbaz added, “I was not prepared for that one today.”
[142] Ms. Elbaz explained that the Crown was “going to rely on the evidence [in the affidavit] as a response to Ms. Mirza’s application about essentially the affiant being dishonest about what happened with his notes on October 27th. That’s what the affidavit was there for and we were expecting that she could cross-examine him just on that issue.”
[143] Ms. Elbaz added that she believed that Ms. Pancer previously told Ms. Mirza it was the Crown’s position that in order to have the e-mail admitted into evidence, the Applicant would be required to call Officer Duran as a witness to “contextualize this e-mail.”
[144] Ms. Elbaz noted that Officer Duran “is available to call in via Zoom and she [the Applicant’s counsel] can put the e-mail through him and that way he can explain the, the e-mail and at that point, the Crown would cross – ask some more questions to clarify.”
[145] Ms. Elbaz went on to say as follows:
“The only reason the affidavit was filed, I, I was able to clarify with Ms. Pancer, was essentially Ms. Mirza would like to put that e-mail in and the Crown is opposed to it without an evidentiary, evidentiary foundation and putting it through Officer Duran who wrote the email to Ms. Pancer and that the purpose of the affidavit was just to, to show what his evidence is going to be on that e-mail clarifying what that e-mail says and the context of that e-mail. The Crown’s not prepared for an e-mail, an e-mail exchange between the Crown and, and the affiant to go before the court as evidence without him being able to explain what it says and what context it was put in, just like any other evidence written documentation that’s put before the court.” [49]
[146] The Crown ultimately chose not to rely on Officer Duran’s affidavit. Ms. Elbaz took the position that “the Court should disabuse yourself of the affidavit.” [50]
[147] On this application, Ms. Mirza argued that the Crown “tacitly acknowledged their improper filing of the affidavit by asking the Court to disabuse their mind of it when the admissibility of it was contested by the Applicant upon the proceeding resuming on September 29, 2020.”
[148] In the Crown’s factum filed on this application, at paragraph 302, Crown counsel explained that, “the affidavit was filed in order to save the Respondent from having to call the Affiant in order to give the evidence (in relation to Officer Duran’s e-mail response to the Crown regarding the April 14, 2019 disclosure request). It provided the Applicant with the evidence before the Affiant took the stand and as such provided a basis for the Applicant’s cross-examination.” In the factum, Crown counsel also stated that “[t]he Applicant took great issue with the filing of the Affidavit, so much so that the Federal Respondent agreed to withdraw it from the record.”
[149] I do not agree with the Applicant’s position that by not relying on the affidavit (and asking me to disabuse my mind of the contents) Crown counsel had “tacitly acknowledged” that the Crown had improperly filed the affidavit. It is my conclusion that Crown counsel made the decision to not to rely on the affidavit in an effort to avoid unnecessary litigation which would have caused additional delay.
[150] At the beginning of the day on September 29, 2020, Ms. Elbaz stated on the record that Constable Duran “will probably testify on the s. 7 today, if we’re going to start with that.” [51] Ms. Elbaz believed that counsel for the Applicant would cross-examine Constable Duran on his affidavit. I accept that Crown counsel believed that Officer Duran’s affidavit was admissible, and that it did not occur to her that filing it with the Court, without the Applicant’s consent or the Court’s permission, could be controversial. This was not a deliberate attempt by the Crown to improperly influence the Court. It would have been better if Crown counsel had sought the prior consent of the Applicant’s counsel or a ruling from the Court before filing the affidavit. However, I do not accept that Crown counsel filed the affidavit for the purpose of improperly influencing the Court.
[151] There has been no prejudice to Mr. Matthew’s right to a fair trial by the filing of the affidavit. This is a judge-alone trial. I have disabused my mind of the contents of Constable Duran’s affidavit. I note that while Crown counsel did not seek to rely on the contents of this affidavit, it was later used by Ms. Mirza during her cross-examination of Officer Duran.
[152] I have concluded that the filing of this affidavit is not conduct that is offensive to societal notions of fair play and decency. It did not compromise the fairness of the trial or the integrity of the judicial process.
Conclusion
[153] After considering all the circumstances, both individually and cumulatively, I have concluded that a stay of proceedings is not warranted and there is no basis to exclude any of the evidence seized by the police. The application is dismissed.
NORTH J.
[1] As an alternative remedy, the Applicant sought an order excluding the evidence seized by the police.
[2] Applicant’s Notice of Application to Stay Proceedings Pursuant to Sections 7 and 24(1), at paragraph 2 (September 23, 2020).
[3] Released on February 3, 2021.
[4] R. v. Villanti, 2020 ONCA 436, at paragraph 113. In making this observation, I am not suggesting that a lawyer should not raise every issue and advance every argument to protect their client’s interests “within the bounds of their professional obligations and the rule of law”: R. v. Gager, 2020 ONCA 274, at paragraph 152.
[5] Transcript, November 3, 2020, page 62.
[6] Transcript, November 3, 2020, page 62.
[7] This disclosure included a letter that Officer Duran drafted (discovered during the cross-examination of Officer Duran on March 17, 2020); notes regarding fingerprints (discovered during the cross-examination of Officer McKenzie); and timestamps on photos taken during the execution of the search warrant (discovered during the cross-examination of Officer McKenzie).
[8] The identity of the officer who conducted the surveillance on October 27, 2018, was not known to the defence for months.
[9] For example, see paragraph 7 of the factum filed by the Crown on the application for a stay of proceedings.
[10] Transcript, November 3, 2020, page 61.
[11] Transcript, January 19, 2021, at page 130. See also pages 135-141.
[12] In arriving at this conclusion, in my view, it seems unlikely that anyone who might have a motive to not disclose the warrant could reasonably expect that the Applicant would not find out about the warrant through other means. The 710 Tretheway search warrant was executed at an apartment that was connected to the Applicant. The Applicant’s counsel had, prior to asking Crown counsel for a copy of the 710 Tretheway warrant, requested other disclosure with respect to the investigation at 710 Tretheway.
[13] Transcript, January 19, 2021, at pages 141-142.
[14] Applicant’s Addendum to Notice of Application Pursuant to Section 7 of the Charter, paragraph 23 (October 8, 2020).
[15] A position that Crown counsel asserted again on November 3, 2020. Transcript, November 3, 2020, at pages 152-153.
[16] Crown’s Factum, at paragraph 154.
[17] Transcript, November 3, 2020, at pages 156-157.
[18] Crown’s Factum, at paragraph 154.
[19] Transcript, November 3, 2020, at page 152. To be clear, the absence of a report from a drug expert would not, by itself, have resulted in an acquittal on the lesser and included offence of simple possession of a controlled substance.
[20] Applicant’s Addendum to Notice of Application Pursuant to Section 7 of the Charter, paragraph 26.
[21] Transcript, November 3, 2020, at page 153.
[22] See also paragraphs 153-154 of my reasons for judgment on the s. 11(b) application.
[23] The s. 11(b) application was brought by the Applicant after March, 2020. It was heard in August, 2020.
[24] Transcript, September 29, 2020, at page 2.
[25] Transcript, September 29, 2020, at page 3.
[26] Transcript, September 29, 2020, at page 3. The section 7 application that Ms. Elbaz referred to was a disclosure application requesting that the Crown produce a letter sent by Officer Duran to the Crown. See Applicant’s Notice of Application Pursuant to Section 7, dated September 8, 2020.
[27] Transcript, September 29, 2020, at page 19.
[28] The document that the defence argued had been improperly filed with the Court on March 2, 2020 included the unredacted source notes of Officer Duran. That issue is addressed later in these reasons.
[29] Transcript, September 29, 2020, at page 53.
[30] Transcript, September 29, 2020, at page 53.
[31] Transcript, September 29, 2020, at page 54.
[32] Transcript, September 29, 2020, at page 55.
[33] During oral argument on the abuse of process application, Ms. Pancer stated that “the issue on that date (September 29, 2020) was that counsel was seeking to file that email without the evidence surrounding how that email was drafted. And it was anticipated that she was going to have to either call Officer Duran to put the email to him because she lacked the evidentiary foundation to do it. As a result of that, I was at a trial at 361 University. Officer Duran came to Guns and Gangs to testify...[t]he anticipation was that once argument started about the affidavit, that Ms. Mirza was going to have to call Officer Duran in order to put the evidentiary foundation in.” Transcript, November 3, 2020, at pages 141-142.
[34] Transcript, September 29, 2020, at page 62.
[35] Transcript, September 29, 2020, at page 63.
[36] Transcript, November 3, 2020, at page 112.
[37] “Virtual Courtroom 4” was used for this matter on September 29, 2020.
[38] He stated that a host may give another person the authority to do this.
[39] Transcript, January 20, 2021, at page 47.
[40] Transcript, January 19, 2020, at pages 143, 146.
[41] Transcript, January 20, 2021, at page 47.
[42] Transcript, January 19, 2021, at 148-149. A protocol with respect to witnesses testifying by Zoom was subsequently imposed in this trial. See Transcript, January 19, 2021, at pages 147-148.
[43] In my view, Mr. Ho Lung’s mistaken recollection that on September 29th he was asked by the Court to turn the camera on was not a significant factor in the assessment of his credibility or the reliability of his evidence.
[44] To be clear, while I have concerns about the reliability of specific parts of Officer Duran’s evidence, it is not my conclusion that his testimony as a whole was unreliable. As I conclude in the reasons on the s. 8 application, the ITO, as amplified on review, contained reliable evidence upon which the search warrants could have been issued.
[45] This document was sent to the Court on February 28, 2020. See Transcript, November 3, 2020, at pages 81 to 87. According to Ms. Pancer, the Crown had not filed the source notes with the Court when she sent the Applicant’s counsel an e-mail advising that the Crown “will be filing” the affiant’s source notes. On this application, Ms. Pancer stated that, “until my friend was aware of the documents I was intending to file and either said yea or nay, I would never have filed those documents with the court. Now, she sent back a request that said in addition to what you’re intending on filing can you add the following. When I responded to that e-mail, my intention was to say I will not be filing anything further, not I’ve already filed, I’m not adding to it.”: Transcript, November 3, 2020, at page 144.
[46] See Transcript, November 3, 2020, at pages 144-147.
[47] I have concluded that Officer Duran did not fabricate the October 27, 2018 surveillance. See Reasons for judgment on the section 8 application.
[48] Crown’s factum, at paragraph 201.
[49] Transcript, September 29, 2020, page 44.
[50] Transcript, September 29, 2020, page 45.
[51] When Ms. Elbaz referred to the “section 7 application”, she was not speaking about the prosecutorial misconduct application. At that point, she was not even aware that a prosecutorial misconduct application had been brought.