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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022 12 06 COURT FILE No.: Brampton 3111 998 20 6980

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.K.

Before: Justice G.P. Renwick Heard on: 05 December 2022 Reasons for Judgment released on: 06 December 2022

Counsel: S. Burton, counsel for the Crown S.K., the Defendant, representing himself

RULING ON S. 7 CHARTER APPLICATION RESPECTING DISCLOSURE

RENWICK J.:

INTRODUCTION

[1] The Defendant faces two counts (sexual assault and sexual exploitation) relating to an alleged hug and kiss of a young person when he was her high school principal. Prior to the start of the Defendant’s trial, he seeks a finding that his s. 7 Charter right has been violated for alleged failures respecting disclosure of the prosecution’s case.

[2] The Defendant initially had a lawyer. In February 2022, the Defendant’s counsel was removed from the record. At that time, there had been no complaint of disclosure issues. In fact, the matter was about three weeks away from trial. Given the change in circumstance, the Defendant sought and received an adjournment. Since 28 March 2022, the Defendant claims that he has been denied his disclosure from the prosecution. The Defendant claims that his disclosure is incomplete and a stay of proceedings is warranted.

[3] The prosecutor denies that there has been any violation of the Defendant’s s. 7 right. Several disclosure issues have been resolved during case-management appearances in October and November 2022. Though the prosecutor admits that there have been some items of disclosure that were delayed, this relates to protocols to protect the privacy rights of witnesses. The prosecution submits that no remedy is required and that this is not the “clearest of cases” requiring a stay.

GENERAL LEGAL PRINCIPLES

[4] The prosecution's obligation to disclose to a defendant all relevant information in its possession is well established at common law and is constitutionally entrenched in the right to full answer and defence under s. 7 of the Charter. R. v. McNeil, 2009 SCC 3 at para. 14.

[5] The duty includes making available the fruits of an investigation, whether inculpatory or exculpatory, subject to any claims of privilege, material that is clearly irrelevant, or “is otherwise governed by law.” McNeil, supra, at para. 18.

[6] The investigative brief is referred to as first-party disclosure, because it resides with the investigating agency, which must turn over this material to the prosecution for disclosure to the defendant. McNeil, supra, at paras. 14, 15, 17, 18, 22, 23, 24, 52, and 53-59.

[7] At law, police agencies not involved in the instant investigation and other Crown departments are distinct and separate entities from the prosecution and do not owe the same duty to produce their records to the prosecuting authority. McNeil, supra, at paras. 13, 22, 25, and 48. For this reason, records held by other police or Crown agencies are governed by the third-party disclosure regime created by the Supreme Court of Canada in R. v. O’Connor, [1995] S.C.J. No. 98. McNeil, supra, at paras. 11, 22, and 47 and R. v. Jackson, 2015 ONCA 832, [2015] O.J. No. 6274 (C.A.) at paras. 80-83.

[8] Production of police disciplinary files or investigations into police conduct, generally, are governed by the O’Connor regime as third-party records. McNeil, supra, at para. 15. However, records relating to findings of serious misconduct by police officers involved in the investigation against a defendant properly fall within the scope of first-party disclosure where the misconduct is either related to the investigation involving the defendant or the finding of misconduct could reasonably have an impact upon the prosecution or defence of the defendant. McNeil, supra, at paras. 15, 54, 57, and 59.

[9] The prosecutor retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. However, this exercise of prosecutorial discretion is reviewable by the court. McNeil, supra, at para. 18.

[10] Where there has been a violation of a defendant’s disclosure right, a stay of proceedings is not automatic. Rather, it will only be appropriate in the “clearest of cases” to order a stay. This is a remedy of last resort where no other remedy can address the fair trial rights of the Defendant or where the prejudice to the justice system is irremediable. R. v. O’Connor, [1995] S.C.J. No. 98 at paras. 59 and 83.

DISCUSSION

[11] There is a tension between the prosecutor’s duty to disclose all material in the possession of the investigating authority which is not clearly irrelevant or privileged, the right to make full answer and defence, any privacy interests of the subjects of third-party or police discipline records, and the orderly management of the defendant’s trial that ought not devolve “into a conglomeration of satellite hearings on collateral matters.” McNeil, supra, at para. 45.

[12] A court hearing an application involving complaints of missing disclosure must determine whether the items sought involve first-party or third-party disclosure, whether any applicable prerequisites are met, and if there must be any balancing of countervailing interests prior to ordering production.

[13] I note that both the prosecutor and the Defendant share some mutual interest in discovering material which may benefit the Defendant, as well as an “interest in discovering the existence of an unreliable or unethical police officer.” McNeil, supra, at paras. 13 and 50. To be clear, I have not made any findings of police impropriety, however, given the Charter application and the thrust of the Defendant’s submissions, it is obvious that the Defendant is not simply alleging negligence or mere inattention to constitutional standards, but rather he alleges that the police and the prosecution have colluded to deny him a fair trial.

[14] As the trial judge, I have had the parties appear before me on several occasions since 12 October 2022 to assist with disclosure issues. On that date, several disclosure orders were made.

The Disclosure Requests

[15] The Defendant complains that disclosure has been delayed to the point that his defence is compromised and there remains outstanding disclosure. [^1] These defects are so significant, says the Defendant, that a stay of proceedings is required. [^2]

[16] The Defendant has sought the following items of disclosure: i. His statement to the police; ii. Witness interviews with the police; iii. McNeil reports of police officers; and iv. 27 school video surveillance clips.

[17] It would appear from exhibit 2 on this Application (Digital Disclosure Hub records) that all interviews and surveillance was shared with the Defendant’s former counsel on 11 December 2020.

[18] This same disclosure (“all interviews and surveillance”) was shared with the Defendant on 24 October 2022.

[19] During oral submissions, the prosecutor advised that transcription notes of all witness statements, including the Defendant’s statement to police, were provided in the “paper” disclosure to the Defendant, which had been provided to his former counsel and then given to the Defendant on or before 25 March 2022. This is somewhat confirmed in the email from former counsel to the prosecutor on 25 March 2022.

[20] The Defendant did not challenge this assertion or the contents of the email from his former counsel. I find that the Defendant received paper disclosure, including the notes of the contents of all witness statements, including his own, on 25 March 2022.

[21] The prosecutor submitted that the following statements were videotaped: i. Complainant’s statement (1.5 hours); ii. Defendant’s statement (2 hours); iii. G.G.’s statement (5 minutes); iv. M.G.’s statement (4 minutes); v. R.G.’s statement (10 minutes); vi. H.K.’s statement (20 minutes); vii. J.S.’s statement (14 minutes); viii. N.S.’s statement (24 minutes); and ix. A.B.’s statement (7 minutes).

[22] While I appreciate that notes of the contents of a statement can never offer the same disclosure value as the actual statement, it is also worth remembering that the prosecutor sent an email to the Defendant (and his former counsel) on 06 April 2022 advising in part:

Mr. Kumar – you can set up a time through the virtual Crown email to view those pieces of disclosure. When you send that email, please also copy me on it. I will let them know that it’s a priority.

[23] As far as I have been made aware, the Defendant never availed himself of the opportunity to set up a time to view the sensitive disclosure (videotaped statements of the child complainant and other witnesses) within the prosecutor’s office.

[24] Moreover, the investigating officer, Detective Bruce Thomson, wrote an email to the Defendant on 15 June 2022 which reads:

On a second but very important matter Mr. Kumar, are you still intending to proceed to trial as “Self Represented” or have you hired new [sic] a new lawyer or are you planning on hiring a new lawyer to represent you? The reason why I ask, there is disclosure material that you are entitled to view if you are self represented but that can only be done at a police station near you. If you have hired or are planning on hiring a new lawyer to represent you that disclosure process is more seamless and can be forwarded directly to that lawyer via an undertaking with Crown counsel.

Please let me know at your earliest convenience so I can ensure you have access to disclosure at a police station near where you are currently residing in British Columbia.

[25] In response, the Defendant sent two emails that same day and another email on 21 June 2022 to Detective Thomson:

On June 8th 2022 in response to my email inquiring did you try to contact me you confirmed that you attended my old residence [address removed]. I further inquired from you about the purpose of your visit on june 8th 2022. You never responded to this inquiry. Before I respond to your today’s email [sic] i need to know your purpose for your visit of june 8th 2022. Please inform me of your purpose of visit. [my emphasis]

[26] On 19 July 2022 the Defendant emailed Detective Thomson and said:

Please find the attached letter requesting you to not contact me as I am mentally disturbed by your conduct. I am available to speak to another police officer. Please provide me with contact information of your supervisor and manager so I can make a formal complaint about you. I know with this email you will double down your vendetta against me.

[27] I find that the Defendant could have accessed his disclosure in the Crown Attorney’s office as of 06 April 2022. Further, he could have responded directly to Detective Thomson regarding setting up an appointment with a police station in B.C. as early as 15 June 2022. Instead, the Defendant became distracted by other interests.

[28] It is obvious that the Defendant has not been diligent in accessing his disclosure containing the witness statements (and his own statement to police) in this matter.

[29] In respect of the Defendant’s statement to police, it is unclear why that was not disclosed directly to the Defendant before late October 2022. That said, for several reasons, there is little that turns on this. Firstly, the Defendant is presumed to know the contents of his statement to police. Secondly, the Defendant had notes of the contents of his statement to police since late March 2022. Thirdly, the Defendant never followed up with the prosecutor after his initial written request for disclosure, nor did he ever specify in writing that he was seeking a copy of his statement. Fourthly, the Defendant indicated in an email sent on 06 April 2022 to the prosecutor concerning his disclosure, “I will make an application to court to make directions on this matter” and he never followed through. Lastly, he never took advantage of the offers to view his statement in a controlled setting.

[30] In the end, I am satisfied that the Defendant knew the contents of his statement to police, he was offered a chance to view the statement in the prosecutor’s office since 06 April 2022 and subsequently in B.C. but he never acted on these offers, and the Defendant has had ample opportunity to review that statement in the six weeks since it was disclosed.

McNeil Reports

[31] Since April 2022, the Defendant has consistently sought all McNeil reports for the officers involved in this case. The prosecutor has consistently maintained that there are no reports to disclose. This was the subject of an earlier disclosure ruling during a case management conference in October 2022.

[32] However, given the Defendant’s oral submissions respecting his claims that Detective Thomson is “racist” and “biased” against him, I am prepared to revisit the Defendant’s request for this item of disclosure.

[33] During oral argument, the prosecutor confirmed that there are no McNeil reports to disclose. I accept that representation. There is no evidence to the contrary.

[34] I have also indicated on a prior occasion that it would be open to the Defendant to cross examine any police witness respecting any criminal investigations or disciplinary investigations into their conduct, past or present.

[35] Nonetheless, I would remind the prosecutor of one of the important findings in McNeil:

…the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused's case, it should form part of the first party disclosure package to the Crown without prompting. For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent upon the police force, in fulfilment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action. McNeil, supra, at paras. 59.

[36] As it does not appear that there are any McNeil reports to disclose, I cannot make any Order for this item.

School Surveillance Videos

[37] The Defendant has submitted that there were 33 surveillance videos taken from the school on the day that the police investigated the sexual assault complaint. At the time, the Defendant had been the owner and principal of the private school, but since his arrest, he was prohibited from re-attending the school to obtain any video evidence.

[38] The Defendant acknowledges that he has been provided six video clips of approximately twenty minutes each. The prosecutor states that some of the recordings duplicate the same timeframe from a different angle. These were available for disclosure on the prosecutor’s digital disclosure hub in October 2022 and they were always available for viewing in the prosecutor’s office since 06 April 2022. [^3]

[39] The prosecutor submitted that the remaining video evidence seized from the school was retrieved from the police station by the Defendant’s son on 17 July 2020 (before the Defendant’s first appearance on these charges). [^4] This disclosure item was also discussed during a case management hearing on 24 October 2022.

[40] During oral submissions, the Defendant did not deny the prosecutor’s suggestion that the school surveillance video recordings were returned to his son. Instead, on the earlier occasion, the Defendant suggested that the prosecutor should go through all of the recordings, which are no longer retained by the police, to find evidence helpful to his defence. Because the prosecutor has not done this, claims the Defendant, the evidence is lost and the Defendant is prejudiced.

[41] I find no merit in this submission for several reasons. First, there is a dearth of evidence respecting what, if anything, was recorded by the school surveillance system. This is the Defendant’s application. I am not satisfied that it is established that there are or were any video recordings that could assist the Defendant in his defence of the alleged sexual assault. Second, the Defendant did not lead any evidence on the Application respecting what happened to the video recordings initially seized by the police and ultimately returned to the Defendant on 17 July 2020. Third, the Defendant has not exercised any diligence respecting the school video surveillance evidence he has received: In oral submissions, the Defendant admitted that he has yet to view the six video clips seized by police and provided to him again on a USB stick on 15 November 2022.

THE APPROPRIATE REMEDY

[42] I am not satisfied that there has been a breach of the Defendant’s s. 7 Charter right for a failure to disclose the fruits of the investigation to the Defendant. However, for the sake of argument, had I found that there had been a failure to disclose or a failure to make timely disclosure, I would not have found this to be the “clearest of cases” requiring a stay of proceedings for the following reasons: i. The Defendant has not been diligent in pursuing his disclosure; he has failed to make an appointment with the prosecutor’s office to view disclosure available to him from 06 April 2022; ii. Rather than respond directly to Detective Thomson to avail himself of the opportunity to view video statements in B.C., the Defendant was obtuse; iii. The Defendant has not viewed the complainant’s statement despite having received it on 24 October 2022; in oral argument he admitted that he sent the video statement for transcription; iv. The Defendant was invited by the court on 01 April 2022 to bring an application for disclosure but failed to do so until the date when his trial was to begin; v. The Defendant threatened to bring a motion for directions respecting disclosure on 06 April 2022 but failed to do so until the date when his trial was to begin; vi. There is no evidence respecting how the timing of disclosure has impacted the Defendant in the preparation of his defence; and vii. there were no submissions made by the s. 486.3 counsel who only received disclosure on 14 November 2022, following his retainer on or about 13 November 2022. [^5]

[43] In the end, even accepting that material disclosure was delayed until six weeks prior to the trial, I am not prepared to find that this has had any impact upon the defence. In the absence of evidence suggesting the effect that imperfect disclosure has had upon the Defendant’s ability to make full answer and defence, I am not prepared to find that any violation of s. 7 requires a remedy beyond declaratory relief.

CONCLUSION

[44] I am not satisfied on a balance of probabilities that there has been untimely disclosure or non-disclosure in this matter. Given the status of disclosure and its availability since April 2022, or at the latest on 24 October 2022, I am not satisfied that the Defendant has been impacted in any way in making full answer and defence. It is obvious that the Defendant has not taken reasonable steps to pursue his disclosure and must accept responsibility for the timing of his access to it.

[45] There is no merit to this Application. It is dismissed.

Released: 06 December 2022 Justice G. Paul Renwick

Footnotes

[^1]: The Defendant did not clarify what items of disclosure are still outstanding. I gather he is referring to the McNeil reports we had discussed during a case management hearing on 12 October 2022 and 27 school video clips. [^2]: Despite that no other remedy was suggested, I have kept all potential remedies in mind in deciding this Application. [^3]: Important to note is that the prosecutor provided the video clips to the Defendant on a USB stick on 15 November 2022, on the record. The Defendant admitted during oral submissions that he had yet to view the contents of the USB because he is “too busy.” [^4]: This fact was noted in the court’s first s. 11(b) Charter decision, released 22 February 2022, at paragraph 33. [^5]: I note that the prosecutor first raised the issue of appointing s. 486.3 counsel on 28 March 2022. At that time, the Defendant agreed with the appointment of counsel to cross-examine the complainant. The matter was raised again on 12 October 2022. On that date, the Defendant did not confirm whether he had taken any steps to retain s. 486.3 counsel. The letter of Mr. Vago (s. 486.3 counsel) seeking disclosure (which was part of exhibit 2 on the Application) indicates that he was retained on 13 November 2022.