ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7357

DATE: 2013 03 28

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Ronald Mitchell, Eric Mearow and Dylan Jocko

Applicants

William S. Johnson and Kelly A. Weeks, for the Crown

Ariel Herscovitch, counsel for Eric Mearow and agent for C. Anik Morrow, Counsel for Ronald Mitchell, and C. Bruce Willson, counsel for Dylan Jocko

HEARD: March 6, 2013

Ruling re: Application for Disclosure of Contact Information

E.J. Koke J.

[1] The applicants stand charged with First Degree Murder and Causing an Indignity to a Human Body.

[2] The applicants’ preliminary inquiry commenced on September 24, 2012 and has continued on and off for eight weeks. A further three weeks are currently scheduled for this matter in April and May of 2013.

[3] A large number of people in the Sault Ste. Marie community were interviewed in relation to this investigation and numerous lay witnesses have been called as Crown witnesses at the preliminary inquiry.

[4] The Crown has decided not to call as witnesses at the preliminary hearing some of the individuals who were interviewed in relation to the charges. Statements which the Crown obtained from these people have been provided to the defence. Defence counsel have advised the Crown that they themselves may wish to call some of these people as witnesses, and they have requested that the Crown provide them with contact information for nine of these individuals (the “named witnesses”) so that they can interview them before the continuation of the preliminary inquiry. The defence has also requested that the Crown provide contact information for any other witnesses they may wish to consider calling as witnesses in the future.

[5] The Crown has refused to provide this information, citing security concerns. Defence counsel bring this application for an order directing the Crown to provide the contact information for these nine named individuals, as well as the contact information for other potential witnesses the defence might wish to contact in the future.

Positions of the Parties

[6] The Crown is concerned about the potential harm which may come to the named witnesses should the contact information be released. The three accused in this case, they argue, have a reputation for violence and gang-related activities within the community and have demonstrated a complete disregard for court ordered non-communication orders imposed on them while they are in custody. By breaching these orders, the Crown claims, they have continued to exert influence among their associates and friends in the community while they are in custody.

[7] The Crown also submits that public confidence in the justice system depends, in part, upon its ability to protect witnesses against threatening or otherwise improper behaviour, in and out of Court. The release of this contact information, it argues, would be failing to do that and therefore has the potential to undermine public confidence in the criminal justice system.

[8] The Crown proposes to facilitate contact by subpoenaing the named individuals and having them attend at the preliminary hearing where they will be available to be interviewed by the defence, and to testify if called by the defence. The Crown has also offered to deliver sealed correspondence from defence counsel to these individuals. As an alternative, the Crown has suggested that it provide counsel with an email account set up for each of the named individuals with an access code provided to them, which would allow for private contact between defence counsel and the individual.

[9] It is the position of the defence that the requested contact information is relevant, and that there are no demonstrated security concerns that should preclude the release of this information. Defence counsel are also willing to undertake not to release the contact information to anyone, not even to the accused who are their clients.

The Legal Framework for the Analysis

General Principles

[10] The seminal case with respect to disclosure by the Crown is R v. Stinchcombe, where the Supreme Court of Canada held that the duty by the Crown to disclose all relevant information is inherent in the right of an accused to make full answer and defence.[^1] These are principles of fundamental justice protected by s. 7 of the Charter.

[11] In determining whether a piece of evidence is relevant, the question is not whether it impacts directly on the issue of guilt or innocence. Relevant information, in the context of the Crown’s disclosure obligations, includes “any 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.”[^2]

[12] Quoting Justice Sopinka in Stinchcombe, Justice Cory held in R. v. Egger that in determining whether information is relevant, it is necessary that the information be assessed in regard to “its usefulness to the defence: if it is of some use, it is relevant and should be disclosed.”[^3] Justice Cory went on to comment that

“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, for example, whether to call evidence.”[^4]

[13] In carrying out its disclosure obligations, it is always incumbent on the Crown to maintain awareness that the information it receives from witnesses is not information which it holds in trust for the witness. It is “the property of the public, to ensure that justice is done.”[^5]

[14] Notwithstanding the fact that Crown counsel is under a general duty to disclose all relevant information, Justice Sopinka made clear in Stinchcombe that this obligation is not absolute. It is subject to the discretion of Crown counsel and this discretion extends both to withholding of information and to the timing of the disclosure. Justice Sopinka cites the duty of the Crown to respect the rules of privilege as an example of when information can be withheld, pointing out that in the case of informers the Crown has a duty to protect their identity. He cites the security or safety of witnesses as another example, as well as any information which is deemed not to be relevant.[^6]

[15] The discretion of the Crown to withhold or delay the release of information is reviewable by the trial judge, as is the case here. On such a review, it is the obligation of the Crown to establish a legitimate reason for the exercise of its discretion; since the general rule requires disclosure of all relevant information, the onus is on the Crown to bring itself within an exception to the rule.

[16] In reviewing discretionary Crown decisions with respect to the release of information, the trial judge should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that doing so would impair the right of the accused to make full answer and defence. If the accused demonstrates that the Crown’s exercise of its discretion goes significantly beyond what is reasonably necessary to achieve the purpose for which the discretion is being exercised, a Charter violation will have been established. [^7]

Review of Case Law

[17] Counsel have referred me to a number of cases in which courts have been asked to review Crown decisions to withhold contact information. These cases confirm that the threshold which must be met by the Crown before it can withhold such information has been set high.

[18] In R. v. Charlery,[^8] Justice Benotto of this court dealt with an application for disclosure of contact information for civilian witnesses at the accused’s trial on charges of first degree murder and aggravated assault. There, the Crown had agreed to provide copies of witness statements, and to facilitate the attendance at court of the witnesses, where they could be interviewed by the defence. However, as in this case, the Crown refused to provide contact information for the witnesses, citing security and privacy concerns.

[19] The Crown’s position in the Charlery case was that the contact information was not relevant because it did not go to the question of guilt or innocence. It was the information that the witnesses had which merited disclosure, they claimed, not their contact information. Justice Benotto rejected the Crown’s argument. She found that the defence needed the witnesses’ contact information to conduct its own investigation and to prepare a full answer and defence. According to Justice Benotto, the usefulness to the defence of the contact information of these witnesses was “clear on the basis of common sense.” [^9]

[20] In R. v. Pickton,[^10] where the same issue arose, Justice Williams of the Supreme Court of British Columbia came to a similar conclusion. In concluding that the witness contact information had to be disclosed, notwithstanding privacy and security concerns, he held that:

It is fundamental that in furtherance of the right to make full answer and defence, an accused must be able to conduct full inquiry into potential sources of information that may prove valuable.[^11]

[21] I agree with the reasoning of Justices Benotto and Williams in the above-noted cases. In my view, the disclosure of contact information, which in turn makes it possible for the defence to contact witnesses directly, enhances the accused’s ability to make full answer and defence. Witnesses are often reluctant to testify at court proceedings. A process whereby the Crown makes the arrangements for witnesses to meet with the defence may have the unintended consequence of increasing this reluctance, particularly if it introduces one further step into the process, such as subpoenaing a witness to a court proceeding for the sole purpose of having the witness available to be interviewed by the defence. As suggested by Justice Benotto, the Crown’s involvement in the interview process also introduces the risk that the witnesses will be tainted against the defence.[^12]

[22] In refusing to provide contact information on the basis that it raises security concerns, the Crown cannot rely on general concerns for the safety of witnesses. In Charlery, the court referred to the fact that the Crown had raised only general security concerns, rather than specific ones.[^13]

[23] In Pickton, Justice Williams found that, save for one specific exception, the Crown’s submissions with respect to witness security consisted of “blanket assertions”. In ordering the release of the contact information, he stated:

While I am sensitive to the interests that the Crown seeks to protect, more specific and articulated concerns in this regard are necessary to justify withholding the contact information from the defence.[^14]

[24] In R. v. Brown[^15] the Court heard evidence that threats had been made against seven witnesses for the Crown, and that these witnesses feared for their safety. Justice Trafford held that in the circumstances of that case the withholding of witness particulars was a proper exercise of prosecutorial discretion.

[25] In arriving at this finding, Justice Trafford quoted the following passage from the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the “Martin Report”) where the committee stated at p. 227:

"... the provision of addresses, and other information that can facilitate contact with a witness, is in the discretion of Crown Counsel, which discretion is, of course, reviewable by the trial judge. In exercising this discretion, it cannot be forgotten that there is no property in a witness. Both parties in any criminal prosecution are entitled to make such proper contact with a witness as is thought necessary or desirable in preparing the case. Therefore, the withholding of addresses by the Crown cannot frustrate the practical exercise of this right ...”

[26] Justice Trafford had the following to say about the rights of a witness to privacy and security in the context of the Crown’s disclosure obligations and the right of an accused to information at paragraphs five and six of his decision:

It is also important for the Court to recognize the rights of witnesses to privacy. They have no legal obligation to speak to counsel before testifying. Neither the Crown nor the defence can compel a witness to attend for an interview. Moreover, a Court ought not to order a witness to attend for such an interview unless the witness has been properly served with a subpoena and has been given a reasonable opportunity to be heard on the issue. A request may be made of a witness to attend for an interview by anyone but the witness may decline to participate. The choice belongs to the witness.

Witnesses must know that the Courts will respect their legitimate interests in being fairly treated by everyone in the administration of justice. They are a critical component of a fair trial - the integrity of the trial process and its capacity to make reliable findings of fact is dependent upon them. The confidence of the public in the criminal justice system is dependent, in part, upon its ability to recognize the need to protect witnesses against abusive, harassing, threatening or otherwise improper conduct and to protect witnesses against abusive treatment in and out of Court and to respond effectively to any such unfortunate occurrence.

Issues before the Court

[27] The first issue before the court can be stated as follows: Has the Crown met the evidentiary and persuasive burden of demonstrating that its refusal to disclose witness contact information is a justified exception to the general rule that all relevant information must be disclosed to the defence?

[28] In the event this court finds that the Crown’s decision is justified, the following issue arises: Is the method proposed by the Crown to provide disclosure from these witnesses reasonable, or does it go beyond what is reasonably necessary to achieve the purpose for which the discretion is being exercised, or give rise to a reasonable possibility that the accused’s right to make full answer and defence will be impaired?

First Issue: Is the Crown’s decision to withhold Contact Information a Proper exercise of its Discretion?

[29] After considering the evidence and submissions of counsel I have concluded that in the circumstances of this case the contact information should not be released. My reasons for coming to this conclusion include the following:

Specific security concerns which have been brought forward

[30] Firstly, in contrast to the general nature of the security concerns raised in the Charlery and Pickton cases, the concerns here involve specific concerns brought forward by participants and potential witnesses in this trial.

[31] Numerous examples of such specific concerns are set out in an affidavit filed by the Crown and sworn by Constable Emily Coccimiglio who is assigned as the Victim Liaison Officer in this case. Constable Coccimiglio was cross-examined by the defence at the hearing of this application.

[32] Constable Coccimiglio refers to a conversation she had on May 25, 2011 with the mother of a witness, Joey Fabiano, in which Joey’s mother spoke about threats she had received. She also informed Constable Coccimiglio that her son had heard rumours that Eric Mearow’s cousin, Shawn Mearow, intended to intimidate witnesses and would arrange to have other people do this, and she shared with Constable Coccimiglio how scared her son still was and how this had affected him.

[33] Constable Coccimiglio refers to a conversation she had with another potential witness, Christopher Syrette on September 12, 2012, in which Mr. Syrette expressed to her that he was nervous about testifying and was in fear for his safety due to the backgrounds of the three accused.

[34] On September 17, 2012 Constable Coccimiglio drove a witness, Roxy Davidson and her sister to the office of the Crown Attorney. Roxy was visibly upset, and while crying stated that she was fearful of the three accused.

[35] Constable Coccimiglio also testified about an incident which occurred on October 3, 2012 at the court house. On that day she witnessed a number of the accuseds’ friends present in the courtroom. Later, after exiting the courtroom she witnessed them yelling “goof” at the mother and step brother of Joey Fabiano who is another participant in the proceedings. Constable Coccimiglio noticed that Joey Fabiano was also shaking after this incident and was crying, saying that he was afraid of these people because they were friends of the accused, Eric Mearow.

[36] On the fourth of October, 2012 Constable Coccimiglio spoke with Joey Fabiano by phone and he advised her that he had a very rough morning the previous day due to what had transpired at the court house, and he was scared about returning to court. Joey Fabiano also told her that Andre Cormier, who was one of the friends who was present at the court house, had punched him in the head once for providing a statement to the police.

[37] Constable Coccimiglio also observed that the incident with Joey Fabiano upset the family of the victim, Wesley Hallam, who advised her that they felt as though they were surrounded at the time, and that they were afraid. Wesley Hallam’s mother and his sister Shannon expressed concerns for their safety. Shannon mentioned that she was concerned because one of the friends had been to her residence in the past.

[38] On October 7, 2012 Constable Coccimiglio spoke by phone with “Patty,” who identified herself as Chris Syrette’s mother, and she informed Constable Coccimiglio that her son was afraid of repercussions as a result of being a witness in this matter. On the following day, Chris Syrette repeated these concerns to Constable Coccimiglio and informed her that he was not happy about being involved in the preliminary inquiry and that he had concerns about what might happen when it was over, and that his involvement had put his life at risk.

[39] On October 16, 2012 Randy Bussineau attended at the residence of Chris Syrette and Chris complained to Constable Coccimiglio that he was threatened by Mr. Bussineau in relation to his testimony at the inquiry. Mr. Bussineau was subsequently charged with Criminal Harassment and Intimidation.

[40] Constable Coccimiglio deposed that on January 22, 2013 she was present at the courthouse and served a subpoena on Rebecca Cirillo. Ms. Cirillo was nervous and crying and expressed fear for her safety at being in the courthouse testifying. She was given a sealed envelope by the Crown, and after reading the contents the Crown explained to Ms. Cirillo that she had a choice as to whether to provide contact information to both the Crown and Defence. Ms. Cirillo indicated that she did not want her number or address given out because she doesn’t want other people knowing that information. Later, one of Mr. Mearow’s lawyers approached her and asked her if he could have her phone number and said he would like to speak to her at some point. He assured her that he would not share this information with anyone. Ms. Cirillo replied that she did not feel comfortable giving her number to him and stated that she did not want to talk to him or anyone else about the matter and just wanted it to be over.

[41] Constable Coccimiglio deposed that Rebecca Cirillo has been extremely concerned about her safety and that members of her family have also expressed concerns for their safety due to Ms. Cirillo’s involvement as a witness in this case. As a result, the Sault Ste. Marie Police Service has assisted Rebecca and the Cirillo family with safety planning and also facilitated contact between them and the Witness Protection program.

[42] On February 1, 2011 local lawyer William Scott contacted Detective Staff Sergeant Sparling with respect to the investigation. Mr. Scott expressed concern for the safety of Courtnie Schapiro, a potential witness in the trial, who had advised him that she wanted to move away from Sault Ste. Marie. This was in relation to her providing a statement regarding the homicide, and the possible repercussions from doing so.

[43] On January 13, 2011, Toronto based lawyer Michael Lacy contacted the Crown Attorney’s office with regard to information he received from Jessie Roach, another potential participant in these proceedings. During this conversation, Mr. Lacy raised concerns over the safety of Mr. Roach.

Violation of Court orders by the accused and their Continuing Ability to exert control over others while in Custody

[44] A second reason for coming to the conclusion that the contact information should not be released is based on evidence before the court that the accused have consistently violated the non-communication orders which have been imposed on them while they are in custody. It has also become apparent that they have a continuing ability to exert influence over certain individuals while in custody. Constable Coccimiglio’s affidavit contains numerous examples.

[45] The evidence is that for a period of 60 days following their arrest on these charges, the three accused were the subject of a wiretap order while they were in custody. During that period of time, the three accused breached their non-communication orders a combined total of 896 times. Mr. Mearow breached it 410 times, Mr. Mitchell 119 times and Mr. Jocko 367 times.

[46] Many of the breaches involved conversations with their girlfriends, and included threats of violence against both their girlfriends and other persons in the community. The conversations indicate that the accused are very resourceful and successful in maintaining contact and influence outside of the detention centre.

[47] By way of example, Constable Coccimiglio references an incident on April 11, 2011 where Eric Mearow’s cousin, Kayla Elie, told Ronald Mitchell to have Andre Cormier, who was incarcerated in the Sudbury jail, call Jaclyn MacIntryre, who is Eric Mearow’s girlfriend (Mitchell was in custody at the time and Ms. Elie and Ms. MacIntyre were out of custody). Not too long after this conversation, Andre Cormier had a detailed conversation with Jaclyn MacIntyre, in which he described how he assaulted an individual in the Sudbury jail, an assault which Cormier thought would result in the person dying.

[48] Based on her review of the recordings Ms. Coccimiglio believes that these were part of a series of communications initiated by Eric Mearow whereby he ordered Andre Cormier to commit the assault. She believes that Mr. Cormier’s detailed account to Ms. McIntyre of the events surrounding the assault was intended to constitute a report back to Mr. Mearow.

[49] On April 21, 2011, a conversation between Jaclyn MacIntyre and Daved Nadon was intercepted. During the conversation, Mr. Nadon told Ms. MacIntryre that Eric Mearow should know where Nadon fits in with the sequence of events. Nadon said that he wanted Mearow to know that if Mearow told Nadon who was running their lips (i.e. talking to the police), that Nadon would take care of it and that even if it turned out to be his mother, Berni Nadon, he would punch her head in. Mr. Nadon also wanted Eric Mearow to know that he, Daved Nadon had love and respect for him. According to Ms. Coccimiglio this conversation suggested that Mr. Nadon was willing to assault witnesses, including his mother, in support of Eric Mearow.

[50] In another intercepted conversation in April 2011, Eric Mearow had a conversation with Jaclyn MacIntryre during which he requested her to have two individuals he identified as “Mike and Xavier” punch out an individual he referred to as “Guzzo”.

[51] On April 26, 2011 Eric Mearow spoke with an unidentified person about his belief that Guzzo was responsible for certain Facebook posts, which Constable Coccimiglio believes referenced the investigation. Mr. Mearow told this individual to tell Guzzo to make the posts disappear, shut his mouth and that then his daughter would have nothing to worry about.

[52] On April 26, 2011 Eric Mearow spoke to a Tyler (last name unknown) and told him to punch out Bernie Nadon. Ms. Coccimiglio believes that this was another example of intimidation related to the investigation, and that Mr. Mearow believed that Nadon was a “rat” who was providing police with information.

[53] On June 3, 2011, Jaclyn MacIntyre, while incarcerated, had a visit with her sister Jordan MacIntyre at the detention centre. During the course of the visit Jaclyn told Jordan not to be mean to Eric Mearow because Mearow could have Jaclyn punched out in the detention centre in a second.

[54] Constable Coccimiglio deposes that on October 2, 2012 the police in Sault Ste. Marie received a comprehensive misconduct report from the detention centre in Sault Ste. Marie regarding Eric Mearow. The report contained a misconduct history for Mr. Mearow, which included allegations that he had acquired contraband or attempted to bring contraband into the institution on three occasions, and that he had committed an assault or threatened to commit an assault on another person. The police also received a report from the Toronto West Detention Centre, which indicated that Mr. Mearow was entrenched in the sub-culture at the Centre and that he required a change of housing location. It also indicated that he was known to participate in attempts to have contraband brought into the institution.

[55] Eric Mearow is not the only one of the three accused who has demonstrated a disregard for court ordered custodial terms. Dylan Jocko has a police and criminal record for assaulting his girlfriend, Melissa Elkin going back to July, 2008. Records indicate that on April 5, 2009 Ms. Elkin complained to the police that Mr. Jocko had communicated with her by sending her a letter from the Sault Ste. Marie Detention Centre. At the time he was on a condition not to communicate with her. As a result of the investigation, Mr. Jocko was cautioned with regard to his behaviour, as the investigation officer had concerns that individuals employed at the correctional facility aided him in the communication. According to Constable Coccimiglio, this demonstrates a high level of resourcefulness on his part.

[56] Constable Coccimiglio reports that on January 9, 2013, Mr. Jocko made a request to the Detention Centre to allow him to use the phone. He advised staff that he was calling his children. There was no answer at the first number he called. He tried a second number, saying he was calling his children’s mother and then he tried a third number. Shortly thereafter Melissa Elkin called the police. She was upset and crying and informed the police that she had just received a call from the detention centre. She did not answer the call but a message was left, and it was from Mr. Jocko, who was under an order not to communicate with her. She told the police she was afraid and that she had no idea how Mr. Jocko obtained her number and that she wanted Mr. Jocko to stay away from her. She experienced a panic attack. Jocko was subsequently charged with breach of a court order.

[57] On January 20, 2013 Ms. Elkin called the police to advise that she had received a call from a former inmate at the detention centre who informed her that she had a message for her from Mr. Jocko. The caller asked for her address. Ms. Elkin repeated to police that she was afraid of Jocko and did not want him to know where she lives. When she was speaking to the police she was crying and had been vomiting.

[58] A misconduct report from the Sault Ste. Marie detention centre reveals that on January 30, 2011 Mr. Jocko was found in possession of contraband and threatened or committed an assault on another person. On October 21, 2011 he was found in possession of a four inch piece of sharpened metal wrapped with a cloth. He revealed that he brought the weapon in from the Central North Correctional Centre, which is located in Penetanguishene, Ontario, concealed internally.

[59] Ronald Mitchell, the third accused in this case, has a long history of violence against his former girlfriend, Courtnie Schapiro. Ms. Schapiro has frequented the Sault Ste. Marie Women in Crisis Centre in the past and numerous complaints to the police were made while she was there about Mr. Mitchell contacting her, contrary to court orders. She has used the shelter prior to and during this investigation.

[60] Constable Coccimiglio advises that Ms. Schapiro is so fearful of Mr. Mitchell that she has now left Sault Ste. Marie for her own safety. She has reported to the police that Mr. Mitchell has displayed his resourcefulness over the years by obtaining her contact information and has stated that “he will find me wherever I am”.

[61] Mr. Mitchell’s willingness to breach court orders while incarcerated has also been demonstrated in the past. On May 28, 2007, while in custody at the Sault Ste. Marie detention centre, Mr. Mitchell attempted to contact Ms. Schapiro by way of a three way call, in breach of a non-communication order. Although he did not reach her, he reached her mother and sister. On July 16, 2007, Mr. Mitchell again contacted Ms. Schapiro from the Sault Ste. Marie Detention via three-way call with his sister. This time, he represented himself as Detective Constable Dukes of the Sault Ste. Marie Police Service. As a result of this call he was convicted of breaching probation. According to Constable Coccimiglio, this demonstrates Mr. Mitchell’s resourcefulness in finding ways to manipulate other people while he is incarcerated.

[62] In addition to numerous charges of assaulting Ms. Schapiro, Mr. Mitchell has also been charged with weapons offences. On June 22, 2009 Mr. Mitchell’s mother, Carrie Rainone, turned over to police a 9mm hand gun with 69 rounds of 38 calibre ammunition and a 38 calibre magazine. She reported that she had located these items in her son’s bedroom. At the time, Mr. Mitchell was on five separate firearm prohibitions. Mr. Mitchell was subsequently located at the home of Ms. Schapiro, breaching his probation order for associating with her.

[63] A misconduct report from the Sault Ste. Marie Detention Centre received by the police on October 1, 2012 indicates that while in custody Mr. Mitchell created or incited a disturbance on three occasions, wilfully disobeyed an order from an officer and assaulted or threatened to assault another person on four occasions. He was also involved in two separate incidents involving the activation of the tactical team. On January 30, 2013 he was found in possession of narcotics.

Involvement by accused in Sault Boyz

[64] A third reason why I have concluded that the contact information should not be released is because there is evidence before the court that the three accused are involved in a Sault Ste. Marie street gang known as the Sault Boyz. On April 14, 2011 Mr. Mitchell is reported to have informed his girlfriend, Berni Nadon, that the Sault Boyz was comprised of Shaun Mearow, Eric Mearow, Andre Cormier, Henry Cadreau, Dylan Jocko and himself. On January 7, 2011 the Thunder Bay jail submitted an intelligence report linking six other individuals to this gang. The logo for the gang was found in the window of the location of Hallam’s homicide.

[65] In my view, the significance of membership in the Sault Boyz by the accused is that their involvement in this gang increases their continuing ability to access information about people in the community, and to arrange to have other members carry out actions on their behalf while they are incarcerated.

[66] In conclusion, I find that the continuing ability of the accused to communicate with persons in the community and outside of the prison system, together with their apparent ability to direct such persons to carry out acts on their behalf, represents a security concern to the potential witnesses in this case. As stated above, witnesses are a critical component of a fair trial, and it is incumbent on the administration to ensure that they feel that they are protected against threatening or otherwise improper conduct. For these reasons I am of the view that the decision by the Crown not to release the contact information is a proper and justified exercise of its discretion.

Second Issue: How should disclosure be provided to the defence?

[67] Defence counsel have agreed that they if they are provided with the contact information they will maintain confidentiality of this information, even with respect to their clients.

[68] I accept that if defence counsel are provided with the contact information, they will maintain this information in strictest confidentiality; however, I still reject their proposal for the following reasons:

[69] Firstly, in recommending against the disclosure of information to defence counsel on terms whereby they undertake not to disclose the information to their clients, the Martin Report suggests that such an undertaking risks undermining the essential relationship of trust that should exist between solicitor and client. To quote the report:

Even if the ability to make full answer and defence is not affected, the impression that can be created by such disclosure from the accused person’s perspective is that defence counsel has entered into a secret agreement with the prosecutor, and is excluding the accused from what may be a very important aspect of the conduct of the case. In the Committee’s view, disclosure cannot be limited in a way that creates the risk of these perceptions arising, as they are perceptions which strain unacceptably the crucial relationship between solicitor and client.[^16]

[70] I concur with this recommendation, and I share the concern that putting counsel in a position where they must agree to accept information to which their clients will not be privy runs the risk of placing an unacceptable strain on the solicitor-client relationship. Such an arrangement also ignores the important principle that it is the client who instructs counsel, and not vice versa, and it is therefore necessary that the client is privy to all of the information about the case which is provided to counsel.

[71] Secondly, I believe that witnesses will generally lack a full appreciation of the duty imposed on counsel, as officers of the court, to scrupulously adhere to undertakings given in the course of litigation. I expect that many witnesses view the interests of counsel as being aligned with the interests of their clients, and that they believe that the lawyer’s primary loyalty lies with the client. As a result, many witnesses will not feel sufficiently assured that the information which is the subject of the undertaking will remain confidential. It is my view that witnesses not only have a right to be secure, they also have a right to perceive that their security interests are being protected.

[72] Thirdly, any of the accused in this case may decide at some point that they wish to retain new counsel to represent them. Notwithstanding the fact that present counsel have provided their undertaking to maintain the contact information in confidence, this undertaking will not be binding on the successor counsel, and subsequent counsel may not be willing to comply with such an undertaking.

[73] In summary, the defence is entitled to a reasonable, but not unfettered, opportunity to conduct its own independent investigation of witnesses, and witnesses have the right to decline to cooperate with the defence and deserve to feel that their security is not threatened by their role as witnesses. To accommodate these competing interests and to ensure an orderly treatment of these issues in the circumstances of this case, I have decided to adopt the procedure set out by Justice Trafford in R. v. Brown.[^17]

[74] The steps to be taken, as determined by Justice Trafford are as follows:

1. At the request of the defence, the Crown Attorney shall make available to the defence a room within the courthouse suitable for a confidential interview of the named witnesses by counsel of record;

2. The interviews are to be strictly confidential; no Crown Attorney or police officer is to be present unless requested by the defence;

3. The fact of an interview and any and all information obtained during it is to remain strictly confidential. No person, including the witness, the defence counsel, the accused and any other person present for any such interview may disclose any information relating to the interview except as may be necessary in the conduct of the trial itself.

4. The named witnesses shall be written a letter jointly signed by all principal counsel of record advising them of the request of the defence to interview them at the courthouse. The letter is to advise the witnesses in the clearest of terms of the existence of this ruling and of the right of the accused to interview them subject to their right to decline to participate in any such interview - the decision is strictly theirs to make. Care is to be taken to ensure the witnesses are not left with the impression they should not grant the defence an interview. The letter is to convey to the witnesses that any such interview will be by the defence counsel of record without any police officer or Crown Attorney present. Moreover, they are to be informed of the order of the Court requiring all persons involved in the interview to maintain the confidentiality of the interview process strictly.

[75] As pointed out by Justice Trafford, the effect of this ruling will be to provide the defence with a reasonable opportunity to conduct an independent investigation of these named witnesses if they are prepared to cooperate with the defence. It ensures that rights of witnesses are observed by providing them with a reasonable opportunity to make an informed decision, and it responds to the legitimate safety concerns of witnesses. This, I believe, is an optimal recognition of the rights and obligations of all of the affected persons, including the right of the accused to make full answer and defence.

[76] I am not prepared to extend this order to include witnesses other than the witnesses named in the Notice of Application. The Crown should exercise its discretion on a case-by-case basis and it is possible that some of these witnesses may require a more or less restrictive approach. I am hopeful and reasonably confident that in the event the defence wishes to meet with additional witnesses, the Crown and the defence can work out a satisfactory arrangement, using the above procedure as guidance.

E.J. Koke J.

Released: March 28, 2013

Footnotes

[^1]: R. v. Stinchcombe, [1991] 3 S.C.R. 326, 1991 45 (SCC).
[^2]: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para 14.
[^3]: R. v. Egger, [1993] 2 S.C.R. 451, 1993 98 (SCC) at para 20.
[^4]: R. v. Egger at para 20.
[^5]: Per Sopinka J. in Stinchcombe at para 12.
[^6]: Stinchcombe at paras 20‑22.
[^7]: R. v. Mohammed, [2007] O.J. No. 5806 at para 23.
[^8]: R. v. Charlery, [2011] O.J. No. 2669.
[^9]: Charlery, supra at para 18.
[^10]: R. v. Pickton, 2005 BCSC 967.
[^11]: Pickton, supra at para 10.
[^12]: Charlery, supra at para 32.
[^13]: Charlery, supra at para 29.
[^14]: Pickton at para 12.
[^15]: R. v. Brown, [1997] O.J. No. 6165.
[^16]: Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the “Martin Report”) at p.174.
[^17]: R. v. Brown, supra at paras 7 and 8.