SUPERIOR COURT OF JUSTICE - ONTARIO

Date: 20120517

RE: Her Majesty the Queen

AND: John Schertzer, Steven Correia, Ned Nebojsa Maodus, Joseph Miched and Raymond Pollard

BEFORE: Madam Justice G. Pardu

COUNSEL: John Pearson, M. Rupic, J. Barrett and S. Reid , Counsel for the Crown

John Rosen, Paul Alexander and Emily Beaton , Counsel for John Schertzer

Harry G. Black and Joanne Mulcahy , Counsel for Steven Correia

Patrick Ducharme, Julie Santa Rossa and Evan Weber , Counsel for Ned Maodus

P. Brauti and Maureen Salama , Counsel for Joseph Miched

Earl J. Levy , Counsel for Raymond Pollard

HEARD: May 17, 2012

ENDORSEMENT

[ 1 ] The Crown seeks leave to introduce the evidence of Hugh O’Connell in reply. It had attempted to introduce the evidence as part of its case in chief, however that application was dismissed. O’Connell was team leader of the federal drug prosecutors in Toronto, and the Crown had proposed that he testify in general about his office’s expectations of the content of the Crown brief prepared by police, and the use his office would in general make of such material. It was also proposed that he testify about the legal obligations of the Crown to make disclosure to defence counsel, and the duty of the Crown to conceal the identity of a confidential informant.

[ 2 ] The Crown submits that while this evidence was only marginally relevant as part of its case in chief, it has now become important because of the testimony of Schertzer that it was his belief that disclosure was made in accordance with Department of Justice policy. If the manner in which disclosure was made did not accord with that policy, this may shed doubt on these assertions. The Crown submits that without this evidence, the defence might argue that the federal Crown was complicit in the falsification of notes, and that it would be unfair to the repute of the federal Crown if the prosecution in this case could not adduce the evidence of O’Connell.

[ 3 ] Schertzer’s testimony was that it was his understanding that both the redacted surveillance notes, and the surveillance notes containing references to confidential informants were both disclosed to the federal Crown. Miched has testified that he told the Crown attorney, Campbell, who conducted the preliminary inquiry, about the surveillance conducted that included observations of the confidential informants. The prosecution has not called Campbell as part of its case. Presumably, Campbell would have assessed the surveillance notes provided to him and assessed what had to be disclosed. There was questions asked by defence counsel about surveillance notes at the preliminary inquiry, and the significance of the issue could not have escaped Campbell’s attention. The defence evidence is to the effect that disclosure of the information was made to the federal Crown, not that the federal Crown endorsed a failure to disclose information by the defendants.

[ 4 ] In dismissing the Crown’s initial application to adduce this evidence, I indicated,

The jury will be required to consider whether the accused’s conduct tended to obstruct, pervert or defeat the course of justice. This requires an assessment of the individual circumstances in each case. Evidence of norms expressed in absolute terms as is proposed, risks diverting the jury from consideration of the particular circumstances in each case, and risks conviction for failure to adhere to a general standard. For example, part of the proposed evidence is that “it was necessary that the Crown brief include a true and accurate surveillance report.” If there were gaps in the surveillance notes, for example, the jury will have to decide if the particular omission tended to obstruct justice and whether the undisclosed material was omitted with the intention of attempting to obstruct justice. Failure to adhere to Crown expectations in general about the thoroughness of surveillance notes would be of little assistance to the jury. Secondly, while O’Connell could testify about expectations of the Crown’s office in relation to the content of a Crown brief, unless those expectations were communicated to the defendants, they could have no bearing on the issue of whether the defendants intended to attempt to obstruct justice. Far more germane will be specific evidence as to the expectations communicated to Toronto police officers about the contents of their notes and the content of Crown briefs, and their role in relation to confidential informants and state agents. There is no basis in the proposed evidence of O’Connell for his opinions about the settled practices of the Toronto Police Service.

[ 5 ] The Crown does not suggest that there is now evidence linking the general expectations of the federal Crown as proposed to be expressed by O’Connell to training or information given to Toronto police officers. The Crown has not called as witnesses either of Detective Sergeant Spires, who was the immediate supervisor of team 3, Schertzer’s team and the Central Field Command drug squad teams, nor his immediate supervisor at 53 Division who would have been in a position to testify about the actual expectations of officers there. In addition, the officers who were responsible for preparing the Crown brief, and complying with the disclosure obligations of the Toronto Police service, were the case managers in each of the matters in issue, Ioakim, Fagundo, Pang, Yeung and Quigley. None of the accused was the case manager in any of these matters, except for two one day, isolated attendances, at a bail hearing and to replace the officer who was the case manager at the Fagundo preliminary hearing.

[ 6 ] This is not to criticize the Crown for not calling this evidence. There are undoubtedly good reasons for not leading evidence from these individuals. What this does illustrate is how the proposed evidence of O’Connell is far removed from the facts of this case. Absent an evidentiary link to the defendants, evidence of general expectations has an inchoate quality that will not be of substantial assistance to the jury.

[ 7 ] Given these evidentiary gaps, the proposed evidence is of little probative value. In addition, O’Connell is now a Superior Court judge. To allow the Crown to call this evidence in reply would give it a significance that outweighs its limited probative value. If anything, the balance of probative value versus potential prejudice weighs more in favour of exclusion at this stage, than during the Crown’s case in chief.

[ 8 ] There is no air of reality to the suggestion that the defence will argue that the federal Crown was complicit in or a party to an attempt to obstruct justice, that is to say, a party to the offence with which they are charged. The defence will likely argue that all information was disclosed to the Crown and that it was the Crown’s obligation to assess whether that information ought to have been disclosed, regardless of the form in which the information was disclosed. There is some suggestion in the evidence that it would have been appropriate to black out the notes in issue, so that redaction would be apparent. The edited surveillance notes do not make it apparent that there was information deleted. Other portions of the notes, containing flight information for example, were said to be deleted because they were not properly part of surveillance notes.

[ 9 ] In short, I am not satisfied that this evidence has become more relevant because of the evidence adduced by the defence. The proposed evidence relates to a general norm or standard that has not been connected by other evidence to the issues in this case. It remains marginally relevant, and the potential prejudice to the deliberation process outweighs its very modest probative value.

G. Pardu J.

Date: May 17, 2012