ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 90000086/12

DATE: 20130326

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ERIC ESPINOSA

Applicant

– and –

SPECIAL INVESTIGATIONS UNIT

Non-Party Respondent

Brian Puddington, for the Respondent

Heather Pringle, for the Applicant

Eric Wagner, for the Non-Party Respondent

HEARD: March 19, 2013

REASONS FOR Decision ON Application FOR THIRD PARTY RECORDS

Benotto J.

[1] Mr. Espinosa is charged with a number of drug-related offences. He was arrested during the execution of a search warrant. During the course of his arrest he sustained a broken neck. His injuries were not initially treated for over two months although complaints were voiced by him and on his behalf. On July 15, 2011 he was taken to the hospital for surgery on his neck. He is seeking to have the charges stayed pursuant to sections 7, 12 and 24(1) of the Charter.

[2] Mr. Espinosa seeks an order compelling production of the investigative file complied by the Toronto Police Services Special Investigations Unit (SIU) in connection with his arrest on May 4, 2011. Counsel have agreed that the records are likely relevant. They have been provided to me for review. The issue is now second stage of the inquiry: whether it is in the interests of justice to produce the records to the accused.

[3] Many of the items sought have now been produced to the defence. The primary category of items in issue is the result of the SIU interviews with police officers and other witnesses.

[4] The SIU opposes the application, the Crown takes no position.

[5] The SIU conducted an investigation and determined that no criminal charges should be brought against the arresting officer. The SIU conducts its interviews on the promise of confidentiality which, it says, is fundamental to its efficacy. Witnesses would be reluctant to co-operate if confidentiality was not guaranteed. There is also the fear that the statements provided to the SIU by police witnesses would be used against them in disciplinary hearings or that officers would ostracized by their peers for having cooperated. All the witnesses in this investigation were given promises of confidentiality. The SIU argues that the deleterious effects of disclosure outweigh the benefit to the accused,

[6] In considering whether the interests of justice require the production, the court must balance the interests of the third parties with those of the applicant. The factors to be considered in balancing these rights have been set out in R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C (3d) 1 at 157. The court must consider:

(a) The extent to which the record is necessary for the accused to make full answer and defence;

(b) The probative value of the record in question;

(c) The nature and extent of the reasonable expectation of privacy vested in that record;

(d) Whether the production of the record would be premised upon any discriminatory belief or bias;

(e) The potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by the production of the record in question;

(f) The extent to which production of records of this nature would frustrate society’s interest in encouraging the reporting of sexual offences; and

(g) The effect on the integrity of the trial process of producing, or failing to produce the record, having in mind the need to maintain consideration in the outcome.

[7] I have reviewed the records produced bearing these factors in mind. Items (d) and (f) do not apply. There are no issues with respect to discriminatory belief or bias; and this is not a sexual offence. The remaining factors applicable here involve a balancing. I consider the necessity and probative nature of the records, on the one hand, as opposed to the privacy and need for confidentiality on the other.

[8] There are two “Follow Up Reports” and 7 interviews. The interviews are of 5 police officers involved in the arrest; Mr. Sarmiento who was arrested with Mr. Espinosa; and Dr. Grant who subsequently treated Mr. Espinosa. They describe the events that took place on the date of the arrest and the circumstances of the arrest. They are highly probative of the issue. As Justice Taylor said in R. v. Scully, [2007] No. 2017 at para 19:

The [SIU] investigation involved the same incident, the same witnesses, canvassing the same ground…The statements of the witnesses both civilian and police are central to the exercise.

[9] The records are necessary for the applicant to pursue his rights under the Charter. Were these documents in the possession of the Crown, they would be produced on the basis of Stinchcombe regime for disclosure.

[10] The consideration then turns to the privacy issue relied upon by the SIU. Promises of confidentially were given to the witnesses. However, as stated by Fuerst J. in R. v. White, 2010 ONSC 6987, [2010] O.J. No. 5529 “…those promises were not absolute.” The persons are routinely told that in the event of court ordered production, the documents would be disclosed. Moreover, as stated by Justice Taylor, and referred to by Justice Fuerst:

It is difficult to see how the individual witness officers could maintain a privacy interest in what they have said to the Special investigations Unit. They are not revealing any personal, biological or financial information. They are describing an event that they observed while performing a public function. (see Scully para. 26)

[11] I was told by counsel that Mr. Espinosa has given the physician authority to release his statement to the SIU.

[12] The balancing here clearly resolves in favour of disclosure of the two reports and the seven interviews. The remaining documents disclosed to me include property and drug reports, search warrant exhibits charts and the original officers notes. These, I assume have already been produced by the Crown and do not need to be reproduced again.

[13] I did not notice any personal information of the persons interviewed. If I have missed something, I invite counsel for the SIU to bring it to my attention prior to disclosure. The disclosure will be subject to the usual conditions of non-disclosure by Mr. Espinosa’s counsel. If there is any issue about this, counsel may contact me to have the matter resolved.

M.L. Benotto J.

Released: March 26, 2013