Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 12 21 COURT FILE No.: Informations—19 072 and 22 198

BETWEEN:

HIS MAJESTY THE KING (Ministry of the Environment, Conservation and Parks)

— AND —

2555569 ONTARIO INC., CLEAR LAKE ESTATES CORP. (ONTARIO CORPORATION NUMBER 2557925), STEVEN BROWN, PHILIP BROWN, TERRANCE BRUCE LITTLE, FRI ECOLOGICAL SERVICES INC. and REBECCA GEAUVREAU.

Before: Justice of the Peace J.G. McMahon

Heard on: September 26, 2022, Written Submissions received October 11, 2022. Ruling on Disclosure Application released on: December 21, 2022.

Counsel: Nicholas Adamson, Demetrius Kappos…………………counsel for the prosecution Timothy S. B. Danson, Rick F. Coburn………………….counsel for 2555569 Ontario Inc., Clear Lake Estates Corp., Philip Brown, Steven Brown and Terrance Bruce Little Matt Gardner …………………………………………..........counsel for FRI Ecological Services Inc. and Rebecca Geauvreau.

JUSTICE OF THE PEACE J. G. McMAHON:

[1] The Defendants make application for disclosure. The application was heard on September 26, 2022. The parties were to submit additional written submissions and materials by October 11, 2022. They did. This is my ruling on the disclosure application.

I. Background

[2] It is alleged that the Defendants were involved in the planning and/or preparatory work towards the building of a private road in a residential land development project in the Township of Seguin [Clear Lake Estates]. The land would include habitat for a threatened species of snake—the Massasauga (Great Lakes—St. Lawrence population). It is more specifically alleged that: preparatory work started on the planned road in the absence of a required permit; protected habitat was damaged and/or destroyed; and the planned work would have caused additional damage and/or destruction in relation to protected habitat. The Defendants contest the allegations. For greater certainty, the Defendants contest the need for a permit even though a permit was subsequently issued.

[3] The Defendants were initially charged with the offence of damaging and/or destroying the habitat of a threatened species of snake—the Massasauga (Great Lakes Population—St. Lawrence population) contrary to s. 10 (1) (a) of the Endangered Species Act, 2007, S.O. 2007, c.6, as amended [ESA]. The alleged offence date is phrased as between January 16 and March 22, 2018. The Information was received on March 6, 2019.

[4] The Defendants were subsequently charged with the additional offence of attempting to damage and/or destroy the habitat of a threatened species of snake—the Massasauga (Great Lakes—St. Lawrence population) contrary to ss. 10 (1) (a) and 36(2) of the ESA. The alleged offence date is phrased as between February 7, 2017 to March 22, 2018. The Information was received on July 6, 2022.

[5] During the hearing, the Defendants clarified that the application was for first party disclosure, but should that application not be granted, the materials sought should be regarded as third party records and be produced.

The materials sought

[6] At the hearing, the Defendants significantly narrowed the scope of the disclosure request to information related to four land development projects.

a) The Salmon Lake Road re-alignment and development by the Township of Seguin. b) The Muskoka Royale Development Inc.—Bracebridge Private School—Lots 7 and 8 and parts of Lots 6, 9 and 10, Concession 12, Muskoka North Ward, Township of Bracebridge. c) Ashworth Bay Waterfront Estate Lots—Lake Vernon; Lots 27 to 30, Concession 3, Geographic Township of Stisted, Town of Huntsville, 731 Etwell Road. d) Hillside Drive Vogrin Port Severn/Treeline Court Development (off of Haney Harbour Road), Severn Township, Port Severn.

[7] Based on the materials filed and submissions of counsel—the nature and characteristics of the four projects would appear to be as follows.

a) The four projects would involve different proponents. b) There does not appear to be ESA investigations or charges associated with the four projects. c) The lands associated with the four projects are said to include and/or be in proximity to ESA protected habitat but it does not appear ESA permits were required. d) At the material time—the four projects appear to have been located within the administrative area of the Ministry of Natural Resources and Forestry’s [MNRF] Parry Sound Office. It should be noted that the Ministry of the Environment, Conservation and Parks [MECP] has since assumed responsibility for the administration of the ESA. e) It appears that some officials at the MNRF Parry Sound Office officials had knowledge of the four projects and were involved in aspects of their review. f) The Salmon Lake Road Project is adjacent to Clear Lake Estates. It appears there is Massasauga habitat on the land associated to the Salmon Lake Road Project as well as habitat for the Blanding’s Turtle. g) It appears the three other projects have more habitat in relation to other species (e.g. Blanding’s Turtle, Eastern hog-nosed snake, Eastern foxsnakes) than the Massasauga. h) It appears the work on the Salmon Lake and the Muskoka Royale Development projects would postdate the timeframe for the current charges—February 7, 2017 to March 22, 2018.

The position of the parties

[8] The position of the Defendants may be summarized as follows.

a) The materials are required to make full answer and defence. b) The four projects are comparable to Clear Lake Estates with respect to ESA protected habitat (but ESA permits were not required for the four projects). c) The materials sought will bring to light inconsistent, contradictory, and unfair interpretation and enforcement of legislation. d) How officials interpret and apply legislation to comparable projects is relevant to a defence of due diligence. Inconsistent and/or contradictory application, interpretation and enforcement of legislation raise the issue of abuse of power. e) The materials sought will be useful for cross-examination and assessing the credibility of prosecution witnesses who were involved with Clear Lake Estates and one or more of the four development projects. f) With respect to the possession and control of the materials sought—the difference between the prosecution and the MNRF is artificial, and the prosecution had a duty to request the materials from the MNRF.

[9] The position of the Crown may be summarized as follows.

a) The materials sought are not relevant to the current proceedings. The materials involve non-investigative files reviewed by MNRF officials to evaluate potential impacts on species at risk and their habitats for unrelated projects in different locations. b) The materials sought are not relevant for the purposes suggested by the Defendants such as abuse of process, selective prosecution and due diligence. c) The materials sought are with the MNRF—which is a separate entity from the prosecution. d) The materials sought are not first party disclosure. The materials are not in the possession or control of the prosecution or the enforcement branches of the MNRF and MECP. e) The materials sought are third party records.

II. Legal Principles

[10] Disclosure applications are usually heard before the trial evidence is presented in circumstances in which one or more of the litigants have not seen the materials sought. Even though the available evidence may be limited at the time of the application, there must still be a determination as to whether the legal thresholds and tests for disclosure are met, notably with respect to the issue of relevance.

[11] A disclosure application is not however the time to determine whether the materials sought will be admissible at trial, confirm a defence or if and how they will be used at trial. The only issue is whether the materials should be disclosed in accordance with the tests and thresholds set out in the case law—as discussed below. It merits mention that the obligation to disclose is a continuing one and as a trial proceeds—what was initially thought irrelevant may become relevant thereby engaging disclosure rights and obligations.

[12] The law of disclosure appears straightforward, but its application can be difficult. In R. v. McQuaid, [1998] 1 S.C.R. 244, at para. 37 [McQuaid], the Court reminds us that “[T]he very nature of the disclosure process makes it prone to human error and vulnerable to attack”.

[13] Our Supreme Court and appellate courts have weighed in to provide additional guidance since the release of R. v. Stinchcombe, [1991] 3 S.C.R. 326 [Stinchcombe]: see R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 [McNeil]; R. v. Quesnelle, 2014 SCC 46, [2014], 2 S.C.R. 390 [Quesnelle]; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35 [Gubbins]; York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 [McGuigan]. Case law has confirmed the legal principles that ground and attach to the right and obligations to disclosure, including, but not limited to the following.

a) There are two disclosure regimes that apply to regulatory offences. First party disclosure governs information in the possession and control of the prosecution. Third party production governs information in the possession of third parties. In McNeil and Gubbins, the Supreme Court provides guidance on how to bridge and narrow the gap between both regimes. In World Bank Group v. Wallace, 2016 SCC 15, at para. 115, the Court confirmed that the “two regimes share a fundamental purpose: protecting an accused person’s right to make full answer and defence, while at the same time recognizing the need to place limits on disclosure when required”.

First party disclosure

b) In first party disclosure—the prosecuting Crown must disclose all that is relevant to the case that is in its possession or control except for information that is privileged or “clearly irrelevant”: McQuaid, at paras. 20-21; McNeil at paras. 17, 18 and 22; Quesnelle, at para. 11; Gubbins, at paras. 18-19; McGuigan, at para. 72.

c) The prosecuting Crown is a separate entity from other all other governmental entities including a police service (and other enforcement authorities) for the purposes of disclosure. There are however—two exceptions. The first is that police must provide the prosecuting Crown with the “fruits of the investigation”. The second is that police must provide the prosecuting Crown with information in its possession or control that is “obviously relevant” to the case at issue: McNeil, at paras. 22-24 and 59; Quesnelle, at para. 12; Gubbins, at paras. 20-23; McGuigan, at para. 74.

d) Information is relevant and should flow where there is a reasonable possibility the information may be useful to: meet the prosecution’s case; advance a defence; or make a decision on how to conduct the defence. This can include information that can lead a defendant to consider, explore or investigate other evidence: McQuaid, at paras. 20, 21, 22 and 36; McNeil, at para. 44. Information that goes to witness credibility should also be disclosed: R. v. Romain, (1992), 75 C.C.C. (3d) 379 (Ont. Gen. Div.).

e) It does not matter whether the material sought may be inadmissible at trial, may not be used by the prosecution or is inculpatory or exculpatory in nature: Stinchcombe, at paras. 19 and 29; R. v. O'Connor, [1995] 4 S.C.R. 411 at paras. 165 and 167 [O’Connor]; McQuaid, at para. 21.

f) The prosecuting Crown has an overarching duty to the proper administration of justice and is not a “normal litigant”. When advised that a third party, including a Crown entity, has “potentially relevant” information—the prosecuting Crown has a duty to make reasonable inquiries with the view of obtaining the information. If it is not successful, the Defence must be advised so it may consider bringing an application for third party production. In this way, the prosecuting Crown assists in bridging the gap between first party disclosure and third party production: McNeil, at paras. 48-51; Quesnelle, at para. 12; Gubbins, at para. 21.

Third party production

g) Information not in the possession or control of the prosecuting Crown is in the possession of a third party. A third party is not part of the proceedings and has no obligation to produce information. However, a defendant can make a court application to obtain the information: McNeil at paras. 26-27; Gubbins, at para. 24-25; McGuigan, at para. 73.

h) The Supreme Court has confirmed that an application for third party production involves a detailed process to bring the matter before a court and then requires a two-step legal analysis: McNeil, at para. 27; Gubbins, at paras. 25-28.

i. At the first step—the Defence must satisfy the presiding judicial officer that the material sought is “likely relevant” to the proceedings. If the threshold is met, the judicial officer will order the production of the material for judicial inspection.

ii. At the second step—the judicial officer will review the material to determine if all, some, or none should be produced to the Defence.

i) The “likely relevant” threshold was described in Gubbins, at paras. 26-27, as follows:

[26] Information will be “likely relevant” where there is “a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify”: O’Connor, at para. 22 (emphasis deleted). The “likely relevant” threshold has been described as significant, but not onerous: O’Connor, at para. 24; McNeil, at para. 29. The reason that the relevance threshold is “significant” is to allow the courts to act as gatekeepers, preventing “speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming” requests for production: O’Connor, at para. 24, quoting R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32.

[27] Nevertheless, the burden on the accused is not onerous. “Likely relevance” is a lower threshold than “true relevance”, and has a “wide and generous connotation” that “includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence”: McNeil, at para. 44; see also O’Connor, at para. 21. Only after information has been shown to be likely relevant will the courts assess the actual relevance of the record sought. The courts then consider competing interests at the second stage of an O’Connor application: McNeil, at para. 39. It may be apparent “upon inspection by the court that the claim of likely relevance established at the first stage of the O’Connor application is simply not borne out”: McNeil, at para. 40.

j) If the court concludes the information is “likely relevant”, it will examine the materials to determine its “true relevance” to the proceedings. At this stage of the analysis—the tests for first party disclosure and third party production converge. What is relevant is produced. What is “clearly irrelevant” is not. The court can redact the materials and impose conditions to protect needed privacy interests: McNeil at paras. 39-42.

[14] The remedy sought by the Defendants is a disclosure order or in the alternative, a production order. The application is framed as a Charter application. The right to disclosure is grounded in the right to make full answer and defence which first found expression in the Common Law. For regulatory offences—it is now codified in s. 46(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33. The right to disclosure is certainly protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, but for regulatory matters enforcing that right does not necessarily depend on the Charter: McGuigan, at para. 95.

III. Analysis

[15] Each disclosure case is to be determined on its facts and circumstances. In this case, I conclude that the materials sought are not first party disclosure. They are third party records.

Not first party disclosure

[16] The materials sought are not first party disclosure. Based on the evidence and submissions of counsel—I conclude that the materials sought:

a) exist; b) are in relation to four separate and distinct projects from that of Clear Lake Estates; c) are related to the assessment of the impacts of the four projects on ESA protected species and habitats; d) are in the possession of the MNRF; e) are not investigative files in the possession or control of enforcement officials; f) are not in the possession or control of the prosecuting Crown; g) have not been seen by the prosecuting Crown; and h) the Defendants have some information about each of the four projects (see Exhibit “N” to the Affidavit of Marjan Delavar, Defendants’ Motion Record, at pages 119-123 and 169-186)

It merits mention that the Defendants’ possession of some information about the four projects does not extinguish the right and obligations with respect to disclosure and did not impact the analysis.

[17] For greater certainty, the materials sought are not the “fruits of the investigation” because the materials were not “generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins, at para. 22; McGuigan, at para. 76. Investigators are certainly required to disclose what is “obviously relevant” but only when that information is in their possession or control. I find that the materials are not in the possession or control of enforcement officials.

[18] In my analysis, I did consider whether the prosecuting Crown had control of the materials sought. I did note some indicia of control in the exchange of correspondence between counsel, notably in exhibits “G” and “I”: Affidavit of Marjan Delavar, Defendants’ Motion Record, at pages 36-39 and 43-45. In that correspondence—the Crown indicates, inter alia, that: it reviewed a disclosure request with MNRF staff; it did not see the relevance of information about other projects; and it would not be asking or directing MNRF officials to undertake a search.

[19] When I considered that indicia against the larger tapestry of relevant factors, the evidence before me and the weight of authority on the distinction between the prosecuting Crown and third parties—I reached the conclusion that the materials sought are not in the control of the prosecuting Crown.

[20] The weight of authority—as discussed above—is to the effect that the term “Crown” is limited to the prosecuting Crown. All other Crown entities are third parties. I understand that the dividing line between prosecuting Crown and third parties—notably police—may be easier to see in the context of criminal prosecutions where the Crown and police services have different offices, administrations and police are almost exclusively involved in law enforcement. In contrast, a government ministry is often a large organization in which multiple functions are exercised such as: policy development; program development; program delivery; project approvals; and permits. The division among prosecution, enforcement and other ministry functions in such circumstances may be less apparent, but it does not mean it does not exist. R. v. Campbell, [1997] 1 S.C.R. 565, offers one example in which the Supreme Court confirmed the independence of an RCMP constable when engaged in law enforcement despite the RCMP performing other non-investigation functions. I am satisfied that based on the evidence and submissions of counsel—the division among prosecution, enforcement and other ministry functions is present in this case.

A duty to inquire

[21] Ordinarily, Crown and Defence will not have the benefit of seeing the information in the possession of a third party. This poses a challenge for the Defence in establishing the relevance of that information at an application for third party production. It is also an obstacle for the Crown as it seeks to assess relevance to determine if its duty to inquire is at play.

[22] As discussed, when the Crown receives notice that a third party may possess “potentially relevant” information—it has a duty to make reasonable inquiries with a view of obtaining the information. This duty to inquire is grounded in the Crown’s obligation to help bridge the gap between first party disclosure and third party production. The Crown is not only a passive recipient of relevant information: McNeil, at para. 48.

[23] To meet its duty, the Crown will be guided by the principles governing disclosure, notably whether there is a reasonable possibility the information may be useful to a defendant in making full answer and defence. With respect to first party disclosure—information the Crown has seen—the Crown must err on the side of inclusion, but need not disclose what is “clearly irrelevant”: Stinchcombe, at para. 20. With respect to the duty to inquire—the Crown need not inquire about information that is “clearly irrelevant”, but it should adopt a generous approach and err on the side of making inquiries given it has not seen the information. There are however other practical considerations related to the proper administration of justice that merit some attention.

[24] In McGuigan, the Court of Appeal expressed support for a simple and inexpensive way to make “obviously relevant” radar manuals available—posting them on a website. In McNeil, at para. 60, the Supreme Court expressed support for Crown and police processes that promote greater efficiency in streamlining applications for third party production. Crown and Defence are not adverse in interest with respect to discovering relevant information: McNeil, at para. 13. As a “minister of justice” and officer of the court, the Crown has obligations towards the proper administration of justice.

[25] To that end—if the Crown can make a simple inquiry of a third party that will advance the proceedings and/or avoid the time, delay, and investment of limited resources associated to court applications—it should consider doing so. This is of particular importance with respect to self-represented defendants. It may very well be that the third party does not object to producing the information.

[26] There are however limits. The Crown should certainly provide serious consideration to a defendant’s request to look into a third party matter, but the defendant cannot draw up a list of disclosure and production requests with the view of conscripting the Crown into investigating potential defences or directing the course of an investigation: R. v. Spackman, 2012 ONCA 905, at paras. 108-109.

[27] Where the third party declines the Crown’s inquiry or simply fails to respond—the defendant can make application for third party production. The decision of the Crown not to make an inquiry can be reviewed in theory. In practice, an application for third party production offers a direct route to the remedy sought—a production order.

[28] In this case, the Defendants’ initial request for materials was very broad, but was narrowed to four specific projects at the hearing. The materials are in the possession of a third party—a government entity. The Crown can certainly make an inquiry with a view of obtaining the materials. In submissions, the Crown proposed it could ask to obtain the materials if I was inclined to indicate that the materials are “likely relevant”. On the procedural front, the materials would then be in the possession of the Crown and subject to the principles governing first party disclosure. The proposal would serve to bridge the gap between first and third party disclosure and such approaches are supported in the case law. It also holds the potential of accelerating and moving the proceedings forward. Before drafting the third party request, I would expect that the Crown may consider having some discussions with Defence about the request, the process, timelines and possibly fine tuning the parameters of the request.

[29] It is however a Crown request—its duty to inquire. It should not be conditional on a judicial determination that the materials are “likely relevant”. A finding of “likely relevant” is made within a judicial proceeding—an application for third party production—and once made, it is the judicial officer that reviews the materials to decide whether they should be produced. In such an application, the prosecuting Crown’s role is somewhat limited. The materials are in the possession of a third party which is separate from the prosecuting Crown. Subject to any legal restrictions or governing legislation—a third party, the subject of the materials or persons with a privacy interest in the materials can always decide to simply provide the materials to Defence and/or Crown. They can also choose not to oppose an application for third party production foregoing the need for a hearing. In addition, having the Crown obtain and review materials after they are determined “likely relevant” would raise a practical issue. If the Crown determines the materials are “clearly irrelevant” and does not disclose them, the matter will probably be back before the Court. We may be back where we started.

[30] There is sometimes a concern that gathering and providing materials can challenge the limited resources of a third party. This is understandable but may be unavoidable. If a third party declines a Crown request to provide materials—the Defence can seek a summons for the third party to bring the materials before the court as part of the application for a third party production.

Third party production

[31] The application for third party production was raised at the hearing. Counsel for the Crown and the Defendants made their submissions. However, we have an application to compel a third party to produce information, but we have not heard from the record holder, the subjects of the materials and other persons who may have a privacy interest in the materials. This poses a problem. The prosecuting Crown cannot be considered as their representative.

[32] In McNeil, at para. 27, the Supreme Court again confirmed the detailed process to bring an application for a third party production. It was not followed in this case. For example—in addition to the absence of interested parties—the materials sought were not brought before the Court. In O’Connor, at para. 20, Lamer C.J. indicated that in some cases the need for a formal application may be waived. However, L’Heureux-Dubé J., at para. 136, indicated that failure to give notice to all interested parties should be fatal to the application subject to the right to make a fresh application.

[33] I am of the view that a middle-ground is now available. In McNeil, at para. 60, Charron J. stated:

… Trial courts seized with motions for disclosure under Stinchcombe or applications for third party production are well placed to make appropriate orders to foster the necessary cooperation between police, the Crown and defence counsel.

[34] The Court of Appeal of Ontario has also provided some instructive guidance on the management of proceedings. It has confirmed that:

a) a court has the authority to control its proceedings and manage the trial process—R. v. Kutynec; b) judicial officers are not passive observers and have a responsibility to control the proceedings to ensure that they are effective, efficient, and fair—R. v. Snow, [2004] O.J. No. 4309 (C.A.) at para. 24; and c) judicial officers have discretion in managing the disclosure process—Toronto (City) v. Riddell, 2019 ONCA 103.

[35] As a result, I adopt an approach that seeks to manage the process in a manner that respects the requirements set out by the Supreme Court but avoids the loss of the investments already made in time, effort and resources. In my view, the process is salvageable, but the third party record holder, the subjects of the materials and others with a privacy interest must be provided an opportunity to be heard before I decide whether the materials sought are “likely relevant”. It may be that they do not oppose production—which could eliminate the need for a continuation of the hearing.

[36] In my analysis, I did consider that in O’Connor, the issue was the production of highly sensitive therapeutic records of complainants in sexual assault proceedings. Disclosure of such records are now governed by what is referred to as the Mills Regime. In contrast, the materials sought in the present case are about land development projects which are usually subject to public processes. There is certainly a likelihood that the privacy interests may be modest in this case and it was suggested that input from those with an interest in the materials may not be strictly required. I disagree. First—the materials have not been seen or reviewed which makes the assessment of privacy and privilege uncertain. Second—even though the case law confirms that a privacy interest is unlikely to defeat third party production, the established procedure still requires notice to interested parties: see McNeil at para. 27 and 41. Third—absent exigent circumstances—an open court proceeding should not result in an order without providing the opportunity for those impacted to be heard.

[37] The process going forward should be as follows.

1. The Crown is to advise the Defendants—without delay—if the Crown is not requesting the materials or if the third party refuses to provide the materials.
2. If the Defendants wish to move forward with the third party application, they are to contact the clerk to schedule a continuation date and follow the requirements set out in McNeil, including: a) serving a summons to the third party record holder to attend court with the materials; b) serving a notice and a copy of the current application materials to the record holder, the subjects of the materials and persons known to have a privacy interest in the materials.
3. The application materials are to be supplemented by an explanation that the proceedings are now about third party production and by a copy of this ruling is to be attached.
4. The Crown should endeavour to assist the process by providing Defence with the information it can about: the record holder or counsel for the record holder; the subjects of the materials; and any other persons with a privacy interest.
5. Counsel may contact the clerk—in writing—if additional clarification or direction is needed. A case management hearing may be scheduled if required.

IV. The Next Steps

[38] In R. v. Ghandi, 2016 ONSC 5612, at paras. 33-34, the Court discussed and confirmed that trial dates may be set even though disclosure items remain at issue. I wish to hear from counsel on this issue and confirm a timetable for the completion of the proceedings. The clerk will reach out to counsel to schedule a case management discussion as soon as practicable.

Released: December 21, 2022 Justice of the Peace J.G. McMahon