COURT FILE NO.: 230/12
DATE: 20121214
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MOHAMED JAMA
Michael Wilson, for the Crown
Ryan Handlarski, for the Accused
HEARD: December 10-11, 2012
K.L. Campbell J.:
Pretrial Disclosure Ruling:
Crown File Regarding the Prior Acquittal of Sgt. LeMaitre
I
Overview
[1] The accused, Mohamed Jama, currently faces a 19-count indictment, alleging the commission of a variety of offences springing from a series of armed robberies of small businesses, committed in Toronto between September 1 and October 1, 2009.
[2] The case against the accused turns largely upon the admissibility of statements allegedly made by the accused following his arrest. The accused contends that these statements are inadmissible as they were made involuntarily and as a result of the violence he suffered at the hands of the police. Essentially, the accused asserts that he falsely confessed to these alleged offences in order to stop the beatings he was receiving from the police. One of the many Toronto Police Service officers who the accused alleges was involved in the infliction of this serious violence against him is Sgt. Robert LeMaitre.
[3] The accused now seeks, by way of a pre-trial motion, the disclosure and production of the Crown’s file involving the prosecution of Sgt. LeMaitre in the fall of 2003 for the alleged offence of manslaughter in connection with the August 9, 2000 death of Otto Vass. Mr. Vass died during a struggle with a number of Toronto Police Service officers outside a convenience store in the west end of the city. At the conclusion of that jury trial, Sgt. LeMaitre and his co-accused fellow officers were found not guilty.
[4] The accused contends that he is entitled to disclosure of the contents of the prosecution file in connection with that case, as it may disclose information that may be useful in his cross-examination of Sgt. LeMaitre at trial. More specifically, the accused argues that, with the information from the Crown’s file, he may be able to establish that Sgt. LeMaitre was involved in the use of unjustifiable force or excessive violence in his interaction with Mr. Vass on August 9, 2000. If the accused can establish, through such cross-examination, that Sgt. LeMaitre has a propensity for violence against citizens, this may assist the accused in establishing that Sgt. LeMaitre was engaged in the alleged acts of violence against him in obtaining his post-arrest statements on October 1, 2009. The accused contends that he is entitled to cross-examine Sgt. LeMaitre on any “prior discreditable acts” on his part, notwithstanding the fact that Sgt. LeMaitre has already been tried and acquitted in relation to his alleged criminal acts against Mr. Vass.
[5] The Crown is opposed to the application, and argues that the information now sought by the accused is clearly irrelevant. More particularly, the Crown contends that in light of the lengthy period of time between the two incidents, the factual dissimilarity between the two incidents, and the jury acquittal of Sgt. LeMaitre on the charge of manslaughter, any information in the Crown’s file in relation to the manslaughter prosecution would be clearly irrelevant to any issue regarding the voluntariness of the statements made by the accused at the trial of this matter.
II
Analysis
A. Information in the Possession of the Crown – First Party Disclosure Rules
[6] The Crown has fairly conceded that in light of the fact that the prosecution file sought by the accused remains in the possession of the Crown, the issue on this pretrial motion is simply whether or not the information sought by the accused is “clearly irrelevant.” In other words, this is not a case where, in order to secure production and disclosure of the records sought, the accused must obtain an order requiring production of the information from some third party. Accordingly, under the disclosure principles articulated by the Supreme Court of Canada in R. v. Stinchcombe (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.) the accused is entitled to production of the requested information unless it is clearly irrelevant.
B. Defining Relevance Generally – The Threshold Standard of Disclosure
[7] Information in the possession of the Crown will be relevant and subject to disclosure to the accused where there is a reasonable possibility that the information could help the accused make full answer and defence. Accordingly, relevance must be assessed both in relation to the charges pending against the accused and any reasonably possible defences. In R. v. Egger (1993), 1993 CanLII 98 (SCC), 82 C.C.C. (3d) 193 (S.C.C.) Sopinka J. elaborated on this requirement, at p. 204:
One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: If it is of some use, it is relevant and should be disclosed. .... This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as ... whether to call evidence.
[8] It is important to appreciate that this threshold standard is a practical, logical relevance. The information sought by the accused need not meet any legal standard of admissibility. This point is illustrated by R. v. Hutter (1993), 1993 CanLII 8478 (ON CA), 86 C.C.C. (3d) 81 (Ont.C.A.); Leave denied: (1994), 87 C.C.C. (3d) vi (S.C.C.). In that case the Crown refused to disclose any information touching upon the “bad character” of the accused, despite a defence request for any such information, on the theory that such information was not admissible and, therefore, not relevant unless and until the accused put his character in issue. In holding that the Crown had erred in failing to disclose this information, the Court of Appeal for Ontario held that information that is useful to the defence in making strategic and tactical decisions is relevant information that must be disclosed, regardless of whether the information is technically admissible at any point in the trial.
[9] Moreover, this standard of relevance is a very low threshold standard for disclosure. In R. v. Dulude (2004), 2004 CanLII 30967 (ON CA), 189 C.C.C. (3d) 18 (Ont.C.A.), Laskin J.A., on behalf of the Court, at para. 22, concluded that, while the videotape sought by the accused in that case was “at its highest ... only marginally relevant,” it still ought to have been disclosed. In describing this relevance standard, Laskin J.A. observed that the case law from the Supreme Court of Canada has “repeatedly emphasized” that the relevance threshold is “very low” and includes materials which may have “only marginal value to the ultimate issues at trial.” Indeed, based on this generous rule, “little information will be exempt” from this disclosure duty on the Crown. See also: R. v. Dixon (1998), 1998 CanLII 805 (SCC), 122 C.C.C. (3d) 1 (S.C.C.) at para. 28; R. v. Taillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.) at para. 59-60.
C. Disclosure of Prior Acts of Alleged Police Misconduct
[10] In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the Supreme Court of Canada dealt with the issue of disclosure regarding prior acts of misconduct by police officers. Generally speaking, the court concluded, at para. 15, that “records” relating to “findings of serious misconduct by police officers” involved in the investigation against the accused properly fall within the scope of the “first party” disclosure package due to the Crown, where the police misconduct is either “related to the investigation” or the “finding of misconduct could reasonably impact on the case against the accused.” The Crown must then, in turn, provide disclosure to the accused in accordance with its obligations under R. v. Stinchcombe. The production of “disciplinary records and criminal investigation files” in the possession of the police that do not fall within the scope of this “first party” disclosure package is then governed by the recognized regime for “third party” production pursuant to R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.
[11] The Supreme Court in R. v. McNeil was cognizant of the “contentious nature of police work” and the risk that disclosure of records of “public complaints” may derail the criminal proceedings against an accused with an inquiry into irrelevant allegations of police misconduct. More particularly, Charron J., delivering the judgment of the court, stated, at para. 45:
Ascertaining the true relevancy of records targeted for production may become particularly important when the information on the production application concerns police disciplinary records. The contentious nature of police work often leads to public complaints, some legitimate and others spurious. Police disciplinary proceedings may also relate to employment issues or other matters that have no bearing on the case against the accused. The risk in this context is that disclosure, and by extension trial proceedings, may be sidetracked by irrelevant allegations or findings of police misconduct. Disclosure is intended to assist an accused in making full answer and defence or in prosecuting an appeal, not turn criminal trials into a conglomeration of satellite hearings on collateral matters.
[12] In considering what should comprise the “first party” disclosure, Charron J. in R. v. McNeil, favourably referred, at para. 55-57, to the Report by the Honourable George Ferguson Q.C., Review and Recommendations Concerning Various Aspects of Police Misconduct (2003), vol. 1, at p. 17, suggesting that the “kinds of information listed in the Ferguson Report can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel.”[^1] The Ferguson Report recommended that certain information be provided by the police upon request of the Crown and this information, then be reviewed by the Crown and disclosed in accordance with R. v. Stinchombe. That list of “first party” discloseable information, commonly referred to as the “Ferguson Five,” is as follows:
Any conviction or finding of guilt under the Canadian Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted].
Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.
Any conviction or finding of guilt under any other federal or provincial statute.
Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.
[13] Finally, in R. v. McNeil, the Supreme Court of Canada provided some practical guidance by offering some examples of records that would be relevant and thus properly disclosed, and some examples of records that would be “clearly irrelevant.” More specifically, at para. 54, Charron J. observed that if a police officer was charged, for example, with the “excessive use of force” in relation to the arrest of the accused, such information would have to be disclosed. On the other hand, as Charron J. noted, at para. 59, where the accused seeks records of earlier misconduct relating to officers who played only a “peripheral role” in the investigation of the accused, or where the misconduct in question has “no realistic bearing on the credibility or reliability” of officer’s evidence, then the records need not be disclosed. In any event, the Crown, and ultimately the court, is required to assess the role of the officer in the investigation, and determine whether the record sought has a realistic bearing on the credibility or reliability of the officer’s evidence, or on another issue at trial.
D. The Proposed Disclosure in the Present Case – Clearly Irrelevant
1. Introduction
[14] In my view, if the information being sought by the accused had been in relation to some prior act of discreditable conduct on the part of Sgt. LeMaitre (whether the subject of a conviction or not), or in relation to some outstanding criminal or pending provincial offence alleged against the officer, or even in relation to some alleged act of professional misconduct or similar disciplinary matter that may be pending against him, then the information might well be relevant and discloseable. After all, the scope of the cross-examination of witnesses (as opposed to an accused) in relation to such matters provides generous latitude for questioning. See, for example: R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont.C.A.); R. v. Titus, 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259; R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont.C.A.); R. v. Hoilett (1991), 1991 CanLII 7285 (ON CA), 3 O.R. (3d) 449 (C.A.); R. v. Chartrand (2002), 2002 CanLII 6331 (ON CA), 62 O.R. (3d) 514 (C.A.).
[15] That is not, however, the kind of information that is being sought by the accused. What is being requested in the present case is information in connection with a dated criminal allegation of manslaughter by Sgt. LeMaitre, for which the officer has already been tried and found not guilty. In the circumstances of the present case, I am driven to conclude that, for all of the following reasons, this information sought by the accused is clearly irrelevant and need not be disclosed by the Crown.
2. The “Ferguson Five” Does Not Include Information Regarding Acquittals
[16] First, it is immediately apparent that the “Ferguson Five” list that was endorsed by the Supreme Court of Canada in R. v. McNeil, at para. 55-57, as to the materials properly subject to “first party” disclosure obligations regarding alleged police misconduct, does not include materials in relation to allegations where the police officer has been found not guilty on the merits of the allegations.
[17] Reduced to their essence, the “Ferguson Five” helpfully catalogues allegations of misconduct by police officers: (1) where the officer has already been found guilty of some federal or provincial offence, or some professional disciplinary offence; or (2) where such charges are outstanding or current and yet still unresolved.
[18] There is no suggestion, either in the “Ferguson Five” recommendations themselves, or the Supreme Court of Canada decision in R. v. McNeil endorsing them, that materials should be provided in cases where the police officer has already faced such allegations and been acquitted on the merits of the case. It is highly unlikely that this important omission was anything but conscious and deliberate.
3. Pardoned Criminal Offences Are Expressly Excluded From Production
[19] The first item of the “Ferguson Five” suggests that any conviction or finding of guilt of a police officer under the Criminal Code or the Controlled Drugs and Substances Act should be part of the first party disclosure package, so long as “a pardon has not been granted.” Accordingly, under this item, even if the police officer had previously been convicted of a criminal offence, materials in relation to that matter would not be part of the first party disclosure package if the accused had subsequently been granted a pardon.
[20] At the time that these recommendations were made by the Honourable George Ferguson, and at the time they were endorsed by the Supreme Court of Canada in R. v. McNeil, the effect of a pardon, according to s. 5 of the Criminal Records Act, R.S.C. 1985, chap. C-47, was to provide evidence that the applicant for the pardon was of “good conduct,” and that the earlier conviction “should no longer reflect adversely on the applicant’s character,” and to remove any legal “disqualification or obligation” the applicant suffered by reason of the earlier conviction.
[21] If materials in relation to the previous conviction of a police officer for a criminal offence are not properly disclosed in cases where the officer has subsequently been pardoned, it is hard to understand how materials in relation to some alleged police misconduct should be disclosed where the accused has been tried on the merits of that charge and found not guilty.
4. An Acquittal is a Verdict of Legal Innocence
[22] In my opinion, it only makes sense that the Crown not be obliged to disclose information in relation to alleged acts of police misconduct where the officer has been found not guilty on the merits of the allegation because the authorities are clear that such an acquittal is a verdict of “legal innocence.” See: R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont.C.A.) at p. 371; R. v. Grdic (1985), 1985 CanLII 34 (SCC), 19 C.C.C. (3d) 289 (S.C.C.) at p. 293; Professor Martin L. Friedland, Double Jeopardy (1969) at p. 129; R. v. Grant (1991), 1991 CanLII 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.) at p. 279; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at p. 383; R. v. Mullins-Johnson (2007), 2007 ONCA 720, 87 O.R. (3d) 425 (C.A.) at para. 22-27.
5. The Judicial Authorities on the Subject – The Alberta Cases
[23] The available judicial authorities on this particular issue, all emanating from the province of Alberta, support the proposition that, where a police officer has been acquitted, materials and information concerning their alleged involvement in the alleged offence need not be disclosed.
[24] For example, in R. v. Polny, 2009 CanLII 81890 (AB KB), [2009] A.J. No. 1511, Nielsen J. of the Alberta Queen’s Bench, dealt with a disclosure request by the accused seeking, inter alia, records of: (1) any hearing into any complaints of police misconduct relating to allegations of dishonesty, excessive force or abuse of authority which were dismissed after a public hearing; and (2) any complaints of such police misconduct relating to the same types of allegations which were dismissed or discontinued without a hearing. Defence counsel argued that this information in relation to police complaint matters which were “dismissed after a hearing, or dismissed or discontinued due to various reasons” must be disclosed in addition to the “Ferguson Five” mentioned in R. v. McNeil. In rejecting this argument, Neilsen J. stated, at para. 29:
Neither the Ferguson report nor the Supreme Court of Canada went so far as to recommend or direct that the additional information which is now sought by [the accused] in this matter in relation to allegations under investigation or which have been dismissed or discontinued be disclosed. Given the extensive review of these issues by both Mr. Ferguson and the Supreme Court of Canada, I cannot accept that this was as a result of oversight. Mr. Ferguson considered this matter extensively and recommended that the items which are identified in the Ferguson Five were the items which should be disclosed upon request by the Crown. The Supreme Court of Canada, whether or not it directed that these items be mandatorily disclosed, accepted those recommendations and did not go further and order production of information in relation to investigations not completed or in respect of matters dismissed. In my mind, there are sound policy reasons for limiting disclosure to the matters identified in the Ferguson Five.
[emphasis added]
[25] Similarly, in R. v. Steele, [2010] A.J. No. 61 (Q.B.), Macklin J. reached this same conclusion in similar circumstances. The accused sought the production of all records in relation to complaints of “dishonesty, excessive force or abuse of authority” in relation to some 13 different police officers, including “any dismissed complaint” concerning such allegations, whether the complainant was “dismissed before or after a public hearing.” In rejecting this disclosure request, Macklin J. stated, at para. 54-57:
The [accused] argues that allegations of misconduct that were dismissed should be included in the first party disclosure package because there are a number of reasons why a complaint against a police officer may have been dismissed that are unrelated to the merits of the complaint. Many of those reasons are technical and do not relate to the substance of the allegations. They include such things as a loss of jurisdiction, missing witnesses, complainants withdrawing the complaint and others.
As the Court in McNeil stated at para. 45: ... Disclosure is intended to assist an accused in making full answer and defence or in prosecuting an appeal, not turning criminal trials into a conglomeration of satellite hearings on collateral matters.
The Court recognized that requiring disclosure of mere allegations, with no assurance that they are well founded, would invariably derail trials. Given the nature of police work and the frequent occurrence of complaints against police officers, courts would inevitably be distracted by matters irrelevant to the case before them. The result would be further prolonging of trials. Such routine disclosure would prevent efficient, expeditious and effective determination of criminal matters while, at the same time, it would often have little or no impact on the fairness of the trial for the accused.
The Court must balance the right of an accused to a fair trial with fairness to the officers whose records are being sought, confidentiality of complainants and third parties, and the goal of maintaining an efficient, expeditious and effective judicial system. The fact that allegations of misconduct were made against an officer and he or she has been investigated at some point does not and cannot automatically entitle an accused to Stinchcombe disclosure of records of those allegations or investigations that were dismissed. Furthermore, requiring the Crown to sift through all such allegations of misconduct under the McNeil first party disclosure process would consume considerable Crown resources. Finally, while the Applicant is correct in stating that many complaints are dismissed for reasons unrelated to the merits of the allegations, it would be both improper and inefficient to litigate those complaints in the context of an accused's criminal trial (see R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 194).
Allegations of misconduct in relation to the 13 Affected Officers that have been dismissed are not subject to automatic disclosure by the police to the Crown pursuant to the first party record process described in McNeil.
[emphasis added]
[26] See also: R. v. Letourneau, [2009] A.J. No. 825 (Prov.Ct.) at para. 134, 150, R. v. C.(J.D.), [2009] A.J. No. 727 (Prov.Ct.) at para. 25, and R. v. Perreault, [2010] A.J. No. 1347 (Q.B.) at para. 112-117, which are to similar effect.
6. The Anticipated Cross-Examination of Sgt. Lemaitre Would Not Provide Any Evidence Helpful to the Accused
[27] As already mentioned, defence counsel for the accused seeks the Crown’s file in relation to the 2003 manslaughter prosecution of Sgt. LeMaitre, in hopes that it might contain information that would assist the accused in his cross-examination of Sgt. LeMaitre. The accused hopes to demonstrate, through cross-examination, that Sgt. LeMaitre has a propensity for excessive and unjustified violence towards citizens. Such evidence would support the testimonial position of the accused that his post-arrest statements to the police were made involuntarily and only as a result of the violence he suffered at the hands of the police, including Sgt. LeMaitre. It is difficult to conceive, however, of how this anticipated cross-examination of Sgt. LeMaitre could, realistically, provide any evidence helpful to the accused on this issue, virtually regardless of the contents of the requested prosecution file.
[28] If defence counsel cross-examined Sgt. LeMaitre in relation to the earlier criminal allegation of manslaughter against him in connection with the death of Mr. Vass., I have no doubt that the officer would, quite predictably, testify that the force he used in relation to Mr. Vass was proportionate and legally justified in all of the circumstances. Sgt. LeMaitre would, no doubt, also observe that, in connection with the criminal allegations then pending against him, the jury unanimously found him not guilty. Those answers would be of no evidentiary assistance to the accused in this case. While the questions posed in such a cross-examination of Sgt. LeMaitre might potentially have some prejudicial impact on the officer, mere factual suggestions by counsel that Sgt. LeMaitre employed excessive and unreasonable force against Mr. Vass, would not have any evidentiary value when flatly denied by Sgt. LeMaitre. Moreover, when faced with such predictably negative responses, the accused could not then attempt to contradict the denials by Sgt. LeMaitre as this would relate to an entirely collateral issue.
[29] In these circumstances, I fail to see how the requested disclosure of the Crown file in relation to the manslaughter prosecution of Sgt. LeMaitre might conceivably be helpful to he accused in relation to any of the issues in this case.
[30] The decision of the Court of Appeal for Ontario in R. v. Akins (2002), 2002 CanLII 44926 (ON CA), 59 O.R. (3d) 546, provides helpful assistance in this regard. In that case defence counsel for a co-accused was permitted to cross-examine the appellant/accused for the express purpose of revealing his bad character and propensity to commit the alleged offence. Counsel was permitted to undertake this line of cross-examination, in part, by questioning the appellant/accused about the facts allegedly underlying past charges against him – even charges that resulted in acquittals. The trial judge permitted this cross-examination on the basis that it was open to the co-accused to attack the credibility of the appellant/accused and to lead evidence of his disreputable conduct and propensity to commit such acts. While convicted at trial, the appellant/accused was successful in having his conviction quashed on appeal. In ordering a new trial, the Court of Appeal held that it was an error for the trial judge to permit cross-examination of the appellant/accused “on the facts underlying past charges for which he was acquitted.” In reaching this conclusion, Cronk J.A., delivering the judgment of the Court, stated, at para. 16:
It is fundamental to the administration of the criminal law that an acquittal is the equivalent to a finding of innocence. … When a verdict of acquittal is entered, it has the effect in a subsequent criminal proceeding of rendering entirely innocent the accused’s connection to the conduct underlying the charge for which the accused was acquitted. By definition, therefore, the facts underlying the charges for which the accused was acquitted generally cannot be relevant either to propensity or to credibility unless properly admitted as similar fact evidence. … Were it otherwise, the fact of a criminal charge alone, without a demonstration of proof, would be sufficient to establish bad character and, potentially, propensity. Such a proposition strikes at the heart of trial fairness and is contrary to our basic tenets of criminal justice. The highly prejudicial effect of the cross-examination in this case on the underlying facts of the charges that led to acquittals cannot be said to be outweighed by the probative value of the evidence elicited by such cross-examination.
[emphasis added]
[31] While Sgt. LeMaitre is certainly not an accused in the present case, the important principles articulated in R. v. Akins would appear to have similar application in this matter. Accordingly, applying the same reasoning process reflected in this passage from R. v. Akins, the acquittal of Sgt. LeMaitre on the charge of manslaughter is the equivalent to a finding of legal innocence on his part. That verdict has the effect of rendering him innocent in connection with the conduct underlying the manslaughter charge on which he was acquitted. By definition, the facts underlying the acquittal cannot generally be relevant to either his propensity or credibility unless it amounts to similar fact evidence. The mere fact that Sgt. LeMaitre was charged with manslaughter and tried for that offence does not establish any bad character or propensity for violence on his part. To provide disclosure to the accused to permit him to potentially cross-examine Sgt. LeMaitre on the facts allegedly underlying the charge that led ultimately to his acquittal would be highly prejudicial, and would have no probative value given the responses that would predictably be offered by Sgt. LeMaitre.
[32] I note in passing that, in R. v. Hoilett (1991), 1991 CanLII 7285 (ON CA), 3 O.R. (3d) 449, the Court of Appeal for Ontario concluded that even cross-examining a witness on previous charges that had been withdrawn by the Crown was “improper.” In that case the Crown had questioned certain defence witnesses (not the accused) in relation to matters which had been withdrawn. Lacourciere J.A., delivering the judgment of the court, stated, at para. 18:
In our view, the entire cross-examination was improper, particularly with respect to charges which had been withdrawn, suggesting to the witness that she was “getting off” or had “got off” charges, giving rise to the possible implication that she was guilty of these charges all along. The error in allowing this cross-examination, also the subject of an objection, was compounded by the trial judge’s direction quoted earlier, whereby the witnesses’ “past experiences with the criminal law system” and earlier “brushes with the law” were left to the jury, without any distinction, as being capable of assisting in the determination of the witness’s credibility.
[33] See also: R. v. Frater, [2008] O.J. No. 5329 (S.C.J.) at para. 19-24.
7. Little Similarity Between the Events – And Greatly Distanced in Time
[34] Finally, in my view, based upon the materials filed on this pre-trial motion, there is little factual similarity between: (1) the Crown’s allegations that formed the basis of the manslaughter charge against Sgt. LeMaitre concerning the August 9, 2000 death of Mr. Vass; and (2) the allegations by the accused against Sgt. LeMaitre concerning how the accused was arrested and interviewed on October 1, 2009. Further, the two events in question are more than nine years apart.
[35] The factual circumstances underlying the manslaughter charge against Sgt. LeMaitre connected to the death of Mr. Vass are outlined in the Crown’s Factum on this motion as follows:
At approximately 12:30 a.m. on August 9, 2000, Mr. Vass attended the 7-Eleven store located at the intersection of Landsdowne Avenue and College Street in the City of Toronto. While in the parking lot, Mr. Vass became involved in a physical altercation with some other individuals. Mr. Vass then entered the store followed by the individuals with whom he’d had the physical altercation. Once inside, the parties had a verbal exchange. One of the individuals punched Mr. Vass. Those individuals then left the store. Mr. Vass refused to leave the store at the direction of the store clerk. The clerk called the police.
Det. LeMaitre and another officer were the first officers to respond to the call. They escorted Mr. Vass to the parking lot. Once outside the entry door to the store, the officers became involved in a physical struggle with Mr. Vass. Two other officers attended to assist in bringing Mr. Vass under control. Following the struggle, it was determined that Mr. Vass was no longer breathing. Attempts to revive Mr. Vass at the scene were unsuccessful. Mr. Vass was later pronounced dead.
[36] The accused testified on the voir dire conducted at the preliminary inquiry to determine the voluntariness of his various post-arrest statements. It is for this testimonial version of events, outlining how the accused was violently mistreated by the police, including Sgt. LeMaitre, that the accused seeks evidentiary support in the Crown’s file regarding the prosecution of Sgt. LeMaitre for manslaughter. The evidence of the accused in relation to the events in the interview room at 31 Division is outlined in the Reasons for Judgment provided by Tuck-Jackson J. at the preliminary inquiry.
[37] As Tuck-Jackson J. helpfully summarized, according to the testimony of the accused, at the time of his arrest in the underground parking garage at his residence, he was beaten viciously by six police officers. However, Sgt. LeMaitre was not in attendance for this arrest and was not involved in this beating. The accused testified that, once he was taken to 31 Division, he was strip searched and left in an interview room in his underwear. Thereafter, he was subjected to a series of nine separate violent assaults over a number of hours. According to the accused, Sgt. LeMaitre was one of the numerous police officers that repeatedly assaulted him during this time period. The police officers apparently advised the accused that the purpose of these assaults was to force him to confess to the robberies with which he is now charged.
[38] It is quickly apparent that, in comparing these two incidents, there is little factual similarity between the alleged events of August 9, 2000 and the alleged events of October 1, 2009. The former event involved the alleged use of force by Sgt. LeMaitre to try to arrest and control a citizen who had been engaged in a verbal and physical exchange with others, while the latter event involved the alleged use of violence by Sgt. LeMaitre to compel an arrested suspect to confess to crimes. The former event took place in public in a parking lot by a convenience store, while the latter event took place within the private confines of an interview room at the 31 Division police station. Further, as I have already noted, the two events take place more than nine years apart. In these circumstances, it is difficult to see how Sgt. LeMaitre’s participation in the former event would be helpful to the accused in establishing that Sgt. LeMaitre was one of the many officers who engaged in the numerous acts of alleged violence against him for purposes of involuntarily extracting a confession from him. See: R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.).
[39] This case is, accordingly, quite unlike the decision in R. v. Jama, [2011] O.J. No. 1984 (S.C.J.), relied upon by the accused, where a third party records application was granted given the “strikingly similar” nature of the allegations in question, which were just a year apart.
III
Conclusion
[40] For these reasons, I will not order the Crown to produce the prosecution file in relation to the manslaughter charge against Sgt. LeMaitre that led to his acquittal. In my view any information in that file that might show any acts of force or violence on the part of Sgt. LeMaitre would be clearly irrelevant to these present charges against the accused. Accordingly, the disclosure application by the accused is dismissed.
[41] Of course, if the accused still wants access to information in connection to the allegations that were made against Sgt. Maitre, he can always order a transcript of excerpts of the trial proceedings in that case, including the testimony of Sgt. LeMaitre, from the court reporter.
Kenneth L. Campbell J.
Released: December 14, 2012
COURT FILE NO.: 230/12
DATE: 20121214
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MOHAMED JAMA
PRE-TRIAL DISCLOSURE RULING
Crown File Regarding the
Prior Acquittal of Sgt. LeMaitre
K.L. Campbell J.
Released: December 14, 2012
[^1]: This Report is available at: http://www.torontopolice.on.ca/publications/files/reports/ferguson1.pdf