ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CR-09-7788
Date: 20120629

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JONATHAN GUARINO Applicant – and – HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO as represented by the Ministry of Community Safety and Correctional Services and CENTRAL NORTH CORRECTIONAL CENTRE

C. Peters, for the Crown

I. Neuman, for the Applicant
B. Whitehead, for Third Party Respondent

HEARD: June 27, 2012

THIRD PARTY RECORDS APPLICATION - RULING

DiTOMASO J.

THE APPLICATION

[ 1 ] The applicant Jonathan Guarino brings this application pursuant to the provisions of R. v. O’Connor for disclosure/production to him of certain records in the possession of Central North Correctional Centre for the period January 1, 2009 to November 30, 2009.

[ 2 ] Production is sought in respect those records that reflect any of the following:

a. Any inmate on inmate assault reported or suspected, inmate names to be redacted;

b. The institutional response to reported inmate assaults, inmate names to be redacted;

c. The disciplinary action taken as a result of each inmate assault, inmate names to be redacted;

d. The nature and degree of any injuries suffered by any inmate suspected which was or was suspected to have resulted from an inmate assault, inmate names to be redacted; and

e. Institutional response to a suspected inmate assault (e.g. lockdown), names of inmates to be redacted.

[ 3 ] The applicant Jonathan Guarino is charged with assault causing bodily harm upon another inmate, John Bond, contrary to the Criminal Code. The assault is alleged to have occurred on October 23, 2009 while they were both inmates at Central North Correctional Centre (“CNCC”), a facility operated by the third party, Ministry of Community Safety and Correctional Services (“Ministry”).

[ 4 ] Mr. Guarino in the application refers to evidence from the preliminary inquiry to suggest that another inmate in custody at CNCC at the time of the alleged assault, Mr. Kristofferson, may have been involved in the incident.

[ 5 ] Mr. Guarino seeks production of Ministry records from CNCC pursuant to R. v. McNeil and claims they constitute first party records as part of the fruits of the criminal investigation in the control of the Crown. Alternatively, he seeks production pursuant to R. v. O’Connor and claims the records constitute third party records in possession of CNCC.

[ 6 ] The records sought from CNCC cover the period from January 1, 2009 to November 30, 2009, almost a full year before the alleged assault. Mr. Guarino does not particularize nor limit his request for production of records for the identified inmates, Bond, Guarino and Kristofferson. Instead, the records sought relate to any inmate on inmate assault reported or suspected, institutional response, disciplinary action taken and the nature and degree of any injuries suffered. Mr. Guarino believes they are relevant to making full answer and defence to the charge. He indicates that the names of inmates contained in the records can be redacted by the Court.

[ 7 ] Further, filed in support of the application is the affidavit of Lisabeth Shaub, part-time legal assistant for counsel for the applicant, Ilan Neuman.

[ 8 ] The affidavit is very short. At paragraph 2 Ms. Shaub affirms:

2. I am advised by Ilan Neuman, counsel for the applicant, and do verily believe that the applicant will be raising a defence of duress during his trial on a charge of assault causing bodily harm scheduled for trial in Superior Court of Justice at Barrie, Ontario, beginning Tuesday, July 3, 2012.

ISSUE

[ 9 ] The issue is whether the applicant is entitled to production of the CNCC records previously described for the period January 1, 2009 to November 30, 2009.

POSITION OF THE PARTIES

Position of the Applicant Jonathan Guarino

[ 10 ] The applicant submits that the defence of duress will be raised at his trial on the charge of assault causing bodily harm. Production of the records is relevant to the issue of duress and Mr. Guarino believing that the institution staff could not protect him from assault from other inmates.

[ 11 ] In order for Mr. Guarino to put forward the defence of duress, he must show that he received a threat and had reason to believe a threat would be carried out and that he had no reasonable avenue of escape. A history of assaults within the institution inmate on inmate would tend to support the belief that inmates might be assaulted and injured within the institution without avenue of escape and without prevention by staff.

[ 12 ] It was further submitted that if there was evidence that Mr. Guarino was threatened with assault while he was incarcerated at CNCC and he had knowledge of such assaults, this evidence could support Mr. Guarino’s belief that staff within the institution could not protect him from assault by other inmates. Production of these records would also be relevant to the charge of assault causing bodily harm and the defence of duress which Mr. Guarino intends to raise at trial.

[ 13 ] The applicant submits that the affidavit of Ms. Shaub is sufficient in that it affirms that the defence of duress will be raised at trial and the material in the preliminary inquiry transcript would also support the argument that there is a sufficient evidentiary basis in this case for the production of those records.

[ 14 ] Lastly, the records would be producible either on the basis that CNCC records constitute first party records as part of the fruits of criminal investigation in the control of the Crown. Alternatively, those records ought to be produced pursuant to R. v. O’Connor as they constitute third party records in possession of CNCC.

[ 15 ] The applicant also submits that where necessary the records could be redacted to protect any demonstrable privacy interest.

[ 16 ] In summary, Ms. Shaub’s affidavit affirming that the defence of duress would be raised during the trial together with material in the preliminary inquiry transcript provided a sufficient evidentiary basis to meet the “likely relevant” threshold required in an O’Connor application. It is submitted production of the CNCC records ought to be ordered.

Position of the Third Party Respondent

[ 17 ] The third party submits that this is a third party records application per O’Connor. The Ministry does not seek to interfere with the Mr. Guarino’s right to make full answer and defence in his criminal proceedings and is a stranger to the prosecution of the charge before the court in this matter. The Ministry is not in a position to know whether the records sought are otherwise part of the Crown’s Stinchcombe obligation.

[ 18 ] The Ministry submits that the application is deficient. There is no supporting affidavit as required by O’Connor to demonstrate how the records sought are relevant to making full answer and defence to the charge before the Court. It is submitted that Mr. Guarino has not demonstrated any nexus between his time in custody and the charge before the Court and has failed to establish that the records sought are likely relevant to an issue at trial; meaning not just the unfolding of events, but also the credibility of witnesses, and the reliability of the evidence in the case.

[ 19 ] Further, Mr. Guarino has not provided required notice to all interested parties. There may well be personal privacy interests asserted by other inmates and such personal information is protected by the Freedom of Information Protection of Privacy Act.

[ 20 ] The Ministry also asserts that the onus is on Mr. Guarino to show that such records are relevant under the O’Connor test and he has not met that test. He has not provided any evidentiary basis to assert that any other inmates from CNCC are involved as witnesses in the criminal matter before the Court. Mr. Guarino has not asserted that the Ministry records contain information concerning the unfolding of events underlying the criminal complaint or that Ministry records bear on the complainant’s credibility. The affidavit of Ms. Shaub does not assist the Court. Neither is there evidence in the preliminary inquiry transcript to the effect that assaults by inmates at CNCC provide a causal connection between those assaults, Mr. Guarino feeling threatened and committing an assault on Mr. Bond at the behest of the instigation of Mr. Kristofferson.

[ 21 ] It is submitted the inquiry is nothing more than a fishing expedition and the application should be dismissed.

Position of the Crown

[ 22 ] The Crown adopts the position of the third party record holder in all respects. This is a third party record application. CNCC is the record keeper the records are not to be produced under any Stinchcombe obligation. The Crown asserts that there is no sufficient evidentiary foundation that meets the “likely relevant” threshold required in an O’Connor application. The application should be dismissed.

ANALYSIS

[ 23 ] On October 23, 2009, it is alleged that the applicant Jonathan Guarino while an inmate at CNCC struck another inmate John Bond fracturing his jaw. As a result, Mr. Guarino was charged with assault causing bodily harm.

[ 24 ] Mr. Guarino takes the position that the records of CNCC are likely relevant: (a) to the “potential” defence of duress which Mr. Guarino will raise at trial, and, (b) to establish an air of reality to a fear of reprisal for failure to carry out certain directions. Mr. Guarino asserts that the threshold of “likely relevant” has been met. Those records should be produced to the court, examined and after balancing the competing rights of the parties, the records should be produced and, where necessary, redact them to protect any demonstrable privacy interest.

[ 25 ] It is a general principle that the Crown must disclose all relevant information subject to its reviewable discretion, including not only what the Crown intends to introduce into evidence but also that which it does not. [1] When the defence seeks information in the hands of a third party (as compared to the State), the following considerations operate as to require a shifting of the onus and higher threshold of relevance:

The information is not part of the State’s “case to meet” nor has the State been granted access to the information in preparing its case; and third parties have no obligation to assist the defence. [2]

[ 26 ] I find that this is a third party records application and that Mr. Guarino properly proceeded with an O’Connor application as a way to seek production of the CNCC records. These records were not in the possession or the control of the prosecuting Crown and do not therefore fall to be dealt with pursuant to the principles set out in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. See R. v. McNeil [2009] 1 S.C.C. 3.

[ 27 ] The first stage in an O’Connor application requires the applicant to show that the records sought are likely to be relevant in his or her trial. The burden is not onerous as the majority made clear in O’Connor. In that case, the majority said that although not onerous, the burden is nonetheless significant “to prevent the defence from engaging in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming’ request for production”. [3]

[ 28 ] In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to the defence in the context of production, the test of relevance should be higher: the presiding judge must be satisfied that “there is reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”. [4]

[ 29 ] Considerations of privacy should not enter into the analysis at this stage. Neither should the Court be concerned as to whether the evidence would be admissible. The relevance threshold at this stage is simply a requirement to prevent the defence from engaging in the speculative and unmeritorious forays described above.

[ 30 ] Once the applicant meets the “likely relevance” threshold, he or she must then satisfy the judge that the salutary effects of ordering the documents produced to the Court for inspection outweigh the deleterious effects for such production. [5]

[ 31 ] Upon their production to the Court, the judge should examine the records and balance the competing interests to determine whether, and to what extent, the records should be produced to the applicant. [6]

[ 32 ] The judge must determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence. [7]

[ 33 ] In balancing the competing rights in question, a variety of factors should be considered by the reviewing judge. [8]

[ 34 ] The critical issue on this application is whether the affidavit of Ms. Shaub affirming that the defence of duress will be raised at trial and nothing more together with certain evidence on the preliminary inquiry is a sufficient evidentiary basis to demonstrate the likely relevance of the records sought.

[ 35 ] Mr. Guarino submits that simply asserting the defence of duress will be raised at trial is sufficient to establish relevance and therefore production of the CNCC records. Respectfully, I disagree. Rather, I am of the view that the application is deficient. Ms. Shaub, the part-time legal assistant for the applicant’s counsel, on the advice of that counsel baldly asserts that the Mr. Guarino would be raising a defence of duress during his trial. There is no supporting affidavit to demonstrate how the records sought are relevant to making full answer and defence to the charge before the court. Mr. Guarino has not demonstrated any nexus between his time in custody and the charge before the court. He has failed to establish the records sought are likely relevant to an issue at trial. He simply casts a wide net to seek from CNCC records for the period from January 1, 2009 to November 30, 2009, almost a full year before the alleged assault. He does not particularize nor limit his request for production of records for the identified inmates Bond, Guarino and Kristofferson. Instead, he seeks records for any inmate on inmate assault reported or suspected, institutional response, disciplinary action taken and the nature and degree of any injuries suffered. Mr. Guarino seeks this production without any evidence whatsoever before the court that he was aware of any such incidents, that he was motivated by his knowledge or such incidents of that he received any threat or direction.

[ 36 ] Rather, in support of his application, Mr. Guarino refers to evidence that another inmate, Mr. Kristofferson, was present at the time of the assault but not within the range where it took place. Mr. Guarino was in one range when Mr. Kristofferson was in another range separated by a door. He further contends that there is hierarchy amongst the inmates and a milieu of violence. In addition, weapons can be found within the institution. There was no evidence or suggestion that there was any threat, either implied or explicit, or direction of any kind in any way directing or affecting the behaviour of Mr. Guarino. There is no evidence that Mr. Guarino sought the protection of the authorities at any time during his incarceration.

[ 37 ] I find that simply asserting that Mr. Guarino will raise the defence of duress at trial is not sufficient in the absence of an evidentiary basis to satisfy the likely relevance test in O’Connor. I also find that evidence taken at the preliminary inquiry does not assist Mr. Guarino in satisfying the threshold of likely relevance of the records sought.

[ 38 ] The onus is on Mr. Guarino to show that such records are relevant under the O’Connor test and I find that he has not met the test. He has not provided an evidentiary basis to meet the threshold requirement that the information in the possession of the third party record holder is logically probative to an issue at trial. The mere assertion that such information is likely contained or borne out by the records, without more, is a speculative fishing expedition. I conclude that Mr. Guarino has not met his onus at the first stage for obtaining third party records as established in O’Connor. He has not shown likely relevance.

[ 39 ] In R. v. O’Connor at para. 140, the Supreme Court of Canada stated:

However, I wish to emphasize that, like any other motion, an application for an order for production of private records held by a third party must be accompanied by affidavit evidence which establishes to the judge’s satisfaction that the information sought is likely to be relevant. The accused’s demonstration that information is likely to be relevant must be based on evidence, not on speculative assertions or on discriminatory or stereotypical reasoning.

[ 40 ] Mr. Guarino has neither established the likely relevance of the CNCC records nor sufficient nexus between himself, the involvement if any of Mr. Kristofferson, and the alleged assault causing bodily harm on Mr. Bond. Only presented by Mr. Guarino is the bald assertion that the defence of duress will be raised at trial. This naked assertion is insufficient to meet the requirement in O’Connor for affidavit evidence which establishes to the judge’s satisfaction that the information sought is likely to be relevant.

DISPOSITION

[ 41 ] After having given full consideration to the submissions of counsel and to the authorities which they referred, the test for likely relevance has not been met by the applicant. Therefore, this application is dismissed.

DiTOMASO J.

Released: June 29, 2012

[1] R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 at para. 29

[2] R. v. O’Connor, 1995 51 (SCC), [1995] S.C.J. No. 98, at para. 19

[3] R. v. O’Connor, supra, at para. 24 quoting from R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727 at p. 744

[4] R. v. O’Connor, supra, at para. 22

[5] R. v. O’Connor, supra, at para. 30

[6] R. v. O’Connor, supra, at para. 31

[7] R. v. O’Connor, supra, at para. 30

[8] R. v. O’Connor, supra, at para. 31