SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 25086/10

DATE: 2013 08 15

RE: Justin Richard Joseph Landry, Plaintiff (Moving Party)

and

Jason Rains, Robert D. Davies, Chief of Police of the Sault Ste. Marie Police Service and Sault Ste. Marie Police Service Board, Defendants (Responding Parties)

BEFORE: E.J. Koke

COUNSEL:
Joseph A. Bisceglia, for the plaintiff (moving party)

Brian G. Grant, for the defendants (responding parties)

HEARD: August 8, 2013

ENDORSEMENT - Motion for Production

[1] This is a motion by the plaintiff for an order requiring the defendants to produce the Crown brief in respect of criminal charges which were filed against the defendant, Constable Jason Rains. The plaintiff also requests Constable Rains’ complete personnel file which is in the possession of the defendant, the Sault Ste. Marie Police Service Board.

[2] For the reasons set out below, these requests are denied. The plaintiff did not show that the evidence he requested was relevant to the issues in the action as set out in his pleadings, nor that the evidence became relevant in light of a change in circumstances. Costs will be allocated by agreement of counsel, or based on further submissions.

Background

[3] In the early morning hours of June 11, 2008, the Sault Ste. Marie Police responded to phone calls from the public reporting suspicious activity in the neighbourhood. The defendant, Constable Rains, was the police canine officer at the time, and he responded with his police tracking dog, Taser.

[4] The plaintiff was apprehended while fleeing the scene. During the course of the apprehension, he was bitten by Taser, and sustained injuries as a result thereof.

[5] The plaintiff alleges that Constable Rains released and unleashed Taser, thus allowing Taser to track and attack Mr. Landry without restraint.

[6] The defendants deny the allegation that Taser was released or unleashed, and they maintain that Taser was at all times secured to a harness and leash being held by Constable Rains.

[7] Up to and including 2010 and 2011, Constable Rains and his wife, Allison Rains, were experiencing marital difficulties. On November 18, 2011 Constable Rains was charged with the following four offences which arose in relation to these marital difficulties:

a. Assaulting Allison Rains between October 1, 2009 and November 30, 2009, contrary to s. 266 of the Criminal Code;[^1]

b. Damaging the property of Allison Rains between October 1, 2010 and November 30, 2010, contrary to s. 423(1)(a) of the Criminal Code;

c. Intercepting private communications between Allison Rains and other persons, between September 1, 2010 and April 15, 2011, contrary to s. 184(1) of the Criminal Code;

d. Intercepting Allison Rains’ computer communications, between September 1, 2010 and April 15, 2011, contrary to s. 342.1(1)(b) of the Criminal Code.

[8] On May 7, 2012, Constable Rains pleaded guilty to the charge of intercepting Ms. Rains’ computer communications and the three other charges were withdrawn. At his sentencing hearing, the facts, as read in, indicated that the alleged incident giving rise to the first charge (the assault) occurred in October 2008 and not October 2009. Constable Rains denied the facts which were alleged in relation to the charges which were withdrawn, and there was no finding of fact made by the court with respect to those charges. He was sentenced to probation for one year and granted a conditional discharge.

[9] In sentencing Constable Rains, the trial judge noted that Constable Rains was a highly respected member of the community and of the police force. She referred to a number of character references from individuals who were both professionals and private individuals who only indicated glowing things with respect to his work ethic and with respect to who he is. She accepted the submission of the Crown and the defence that Constable Rains’ actions were motivated by jealousy and mistrust of his spouse. She also noted that the offence to which Constable Rains pleaded guilty was a newly created offence, and she accepted the defence submission that Constable Rains was not aware that he was breaking the law when he intercepted his then wife’s communications, notwithstanding the fact that he was a police officer.

[10] Constable Rains also pleaded guilty to a number of charges of discreditable conduct under the Police Service Act[^2] in relation to the above allegations. On the basis of a joint submission from defence and prosecution lawyers, Constable Rains was penalized by being demoted from a first-class to a second-class constable for two years.

[11] The plaintiff filed a newspaper article as an exhibit on the motion. The article reported that both the prosecutor and the defence lawyer told the hearing officer that the charges under the Police Services Act came about as a result of excessive drinking and jealousy over Constable Rains’ wife’s affair with one of his best friends.

[12] Constable Rains was examined for discovery on September 14, 2010. The action was set down by the plaintiff on May 27, 2011, which was prior to the date that Constable Rains was charged with the above offences.

[13] This action is scheduled to be tried by a jury during the week commencing September 2, 2013.

Position of the Parties

[14] With respect to the production of the Crown brief, the defendants argue that the offence to which Constable Rains pleaded guilty occurred more than two years after the events involving Mr. Landry. Furthermore, there is no allegation or suggestion that any of the conduct occurred in the course of Constable Rains’ employment or work as a police officer or canine handler. Accordingly, the contents of the Crown brief are irrelevant to the matters in issue in this proceeding.

[15] With respect to the production of Constable Rains’ complete personnel file, the defendants argue that all of Constable Rains’ training, education and experience with respect to the handling of police dogs, together with all relevant training records have been produced and canvassed on examinations for discovery, and the plaintiff has failed to establish any foundation for the relevance of this entire file. Furthermore, there has not been any change of circumstances which would permit the plaintiff to seek leave for production of this file at this stage of the proceedings pursuant to rule 48.04(1) of the Rules of Civil Procedure.[^3]

[16] The defendants also claim that the disciplinary proceedings under the Police Services Act are the subject of statutory privilege.

[17] According to the defendants, the plaintiff’s motion is motivated by a desire to obtain information which can be used to embarrass Constable Rains before the jury, and comprises nothing more than a fishing expedition.

[18] The plaintiff argues that the contents of the personnel file are relevant to the question of whether or not Constable Rains had the training, knowledge or ability to conduct himself appropriately and within the law at the time of the occurrence involving Mr. Landry. The personnel file may also contain information that undermines Constable Rains’ evidence given on his examination for discovery and potentially at trial, as to the extent and background of his training as a police officer and canine handler. It may also reveal a pattern of activity indicating that he is an undisciplined police officer who, at various times, failed to conduct himself within the bounds of the law. This too may undermine his credibility and his testimony that he conducted himself properly on the date in question.

[19] With respect to the production of the Crown brief, the plaintiff argues that the Police Service Act charges and the criminal charges indicate that Constable Rains has difficulty complying with what is expected of him not only as a police officer but also as a citizen. These charges arising after the action was set down for trial constitutes a change of circumstances, justifying the motion for further production.

The Test for Production of Documents

[20] Rule 30.02 of the Ontario Rules of Civil Procedure provides that a party is required to disclose every document “relevant to any matter in issue in an action that is or has been in the possession, control or power of a party”.

[21] In deciding whether the test has been met in this case, I concur with and adopt the approach used by Wilson J. in Tanner v. McIlveen Estate.[^4] Although the Tanner case pertained to the scope of oral discovery under rule 31.06, the scope of documentary discovery under rule 30.02(1) applies the same test, namely that the questions must be “relevant to any matter in issue in an action”.[^5]

[22] The Tanner case was an appeal from a master’s decision on a refusals motion. The plaintiffs alleged that they were sexually assaulted by the defendant physician and the statement of claim pleaded, amongst other things that: “In approximately 2002, Dr. McIlveen was charged by the Durham Regional Police Department with multiple counts of sexual assault and indecent assault against dozens of his current and former patients.”[^6]

[23] At discovery, the plaintiffs requested disclosure of any prior complaints and criminal charges against the doctor for sexual and indecent assaults against patients. The questions were refused, and the plaintiffs brought a motion which was successful at first instance.

[24] In ordering the defendant to answer the questions, the master stated that the “seminal issue for trial is the credibility of the plaintiffs and Dr. McIlveen … the trial judge will have to determine who is telling the truth.”[^7] The master noted as well that in his view there was no other way, apart from the discovery process, for the party to obtain this evidence.

[25] On appeal, Wilson J. prefaced her analysis by observing that “[w]hile the scope of questions that may be asked at discovery is broad, it is not without restrictions”, stating that a discovery should not comprise “a fishing expedition”.[^8] She noted that rule 31.06 set out limitations on the questions which could be asked at discovery.[^9]

[26] Wilson J. emphasized that “[t]o determine the relevance of a question, one must first examine the pleadings”[^10] and explained that “the test is whether the question posed bears a semblance of relevance to the issues in the lawsuit”.[^11]

[27] Upon reviewing the pleadings, Wilson J. noted that the plaintiffs did not plead that the defendant engaged in similar behaviour towards other patients, just that he had previously been charged with indecent assault. In her view, this pleading was too vague to form the basis for a plea of similar fact evidence. She held that in the absence of a pleading which set out the framework for similar fact evidence, the questions concerning prior complaints against the defendant did not meet the semblance of relevance test.[^12]

[28] Wilson J. concluded that the purpose of the questions was to attack the defendant’s credibility and to enhance the credibility of the plaintiffs, and she held that rule 31.06(1)(b) prohibits questions that go “solely to the issue of credibility of the witness”.[^13]

[29] Wilson J. held that the test of relevance had not been met and allowed the appeal, noting that “the purpose of discovery is not to permit counsel to ask any and all questions in the hopes of discovering something that will be of assistance to the case”.[^14]

In summary, in order to determine whether documents are relevant to a matter in issue in an action, one must first examine the pleadings. The role of the pleadings is to identify the issues in dispute between the parties, and once these issues are identified, a determination can then be made as to whether a document is relevant to a matter in issue.

The Pleadings

[30] The pleadings are summarized in paragraph 18 of the defendant’s factum as follows:

18. As to the negligence of Constable Rains, the Statement of Claim alleges that:

1. ¶ 37 “on the evening in question…, [Officer Rains] failed to properly assess the circumstances in which they were involved and determine the consequences of the use of Taser”

2. ¶ 38 “given the methodology, procedure and the use of Taser, in the circumstances of the evening in question, the guidelines and policies [of the police] were not in existence or, if they were, were deficient or not followed [by Officer Rains].”

3. ¶ 39 “[t]he use of Taser on the evening in question in the manner that he was utilized was inappropriate, reasonable and negligent….there was no need to unleash and release Taser. The officers, and in particular Constable Rains knew, or ought to have known, that by unleashing and releasing Taser, he was utilizing Taser as an attack dog. The dog was an instrument of force or harm.”

4. ¶ 40 there was a “failing to warn [the plaintiff] of their intended use of force”

5. ¶ 41 “that the unleashing and releasing of Taser and the use of Taser as an instrument of attack amounts to an assault and battery in law.”

6. ¶ 42 “that Taser ought not to have been called in or released. The officers should have been more cautious and prudent in the utilization of Taser.”

7. ¶ 43 “that by unleashing and letting Taser go as [the officers] did, they knew or ought to have known that he would run wild and be an agent or vehicle of attack likely to cause injury and victimize [the plaintiff].”

8. ¶ 44 “that on releasing Taser they knew or ought to have known that they would be unable to control the dog and he could and would cause serious injury and bodily harm to [the plaintiff].”

9. ¶ 45 “[t]he defendants knew or ought to have known that on Taser locating [the plaintiff] that they would have to intervene to rescue [the plaintiff], given the training and background of Taser.”

10. ¶ 46 “[t]he use of Taser in these circumstances amounted to excessive and unreasonable use of force.”

11. ¶ 48 “that the police officers knew or ought to have known that the use of Taser, in the circumstances, and unleashing and deploying the dog was similar to the use of a firearm leading to potential lethal consequences.”

12. ¶ 49 “[a]ll officers involved lack proper education or instruction in when and what circumstances to utilize a dog such as Taser or, in the alternative, having received training, failed to abide by the principals [sic] and policies and directives provided to them.”

13. ¶ 51 “Constable Rains … failed to provide adequate training to the dog Taser to heed commands after a suspect is subdued. They utilized a dog that was not trained for its intended purpose or tasks as it was required to perform.”

Discussion

[31] In my view, the pleadings can be summarized as alleging deficiencies in Constable Rains’ training as a police canine officer and arguing that his use of Taser on the night in question did not meet the requisite standard of care.

[32] The evidence before me is that the defendants have produced all records and documents pertaining to Constable Rains’ training, together with Taser’s regular performance records and the Sault Ste. Marie Police Service’s policies with respect to the Canine Unit. Furthermore, the issues pertaining to Constable Rains’ training and experience as a canine handler, as well as Taser’s training and performance as a police service dog, were fully canvassed on examinations for discovery and through answers to undertakings.

[33] In his notice of motion, the plaintiff argues that the contents of Constable Rains’ personnel file and the Crown brief are relevant to this action because they involve matters of discipline and the ability of Constable Rains to follow proper procedures, guidelines and policies of the police service, and the legislated Code of Conduct for a police officer in Ontario.[^15]

[34] I note however that the plaintiff has not pleaded that Constable Rains generally lacks discipline, or has a general inability to follow proper procedures, guidelines and police policies, and the police Code of Conduct. The negligence of Constable Rains, as alleged by the plaintiff in his pleadings, was limited to one incident, which occurred “on the night in question”. Further, there is no suggestion in the plaintiff’s pleading that he intends to rely on similar fact evidence.

[35] I note as well that the facts underlying the allegations of criminal misconduct against Constable Rains all occurred after the incident involving the plaintiff and did not occur while Constable Rains was on duty as a police officer. Furthermore, nothing about the allegations is in any way related to Constable Rains’ training or performance as a police officer or canine handler.

[36] On the basis of the above facts, I find that the contents of the Crown brief are not relevant to any issues in this action, and the request that the defendant produce this file is denied.

[37] With respect to the request that the defendants produce Constable Rains’ personnel file, I believe the decision of the Divisional Court in Andrushko v. Ontario[^16] has established that any documents and information related to the Police Services Act charges against Constable Rains are the subject of statutory privilege, as set out in ss. 69(8) and 80 of that Act.

[38] The balance of the personnel file would not normally be subject to privilege, and documents therein which meet the test of relevancy are therefore subject to production. However, rule 48.04(1) requires that the plaintiff have leave from the court to move for production of this file since the action was set down for trial back in May of 2011. If the plaintiff was not satisfied with the defendants’ efforts at the time the discoveries were held in September 2010, he could have moved at that time for additional production. He failed to do so.

[39] Although I agree that the charges against Constable Rains may very well represent an unexpected change in circumstances, this change in circumstances is not such that it should now cause the plaintiff to consider the personnel file relevant if he did not consider it relevant at the time of the examinations for discovery. As I have explained above, the charges against Constable Rains are not relevant to the issues in this law suit. Leave to bring this portion of the motion is therefore also denied.

Costs

[40] If counsel cannot agree on costs, I ask that they submit written submissions within 15 days of the release of this decision, with a further 10 days to file any responses thereto.

E.J. Koke SCJ

Date: August 15, 2013

[^1]: Criminal Code, R.S.C., 1985, c. C-46.
[^2]: Police Services Act, R.S.O. 1990, c. P.15.
[^3]: Rules of Civil Procedure, O. Reg. 575/07, s. 6 (1).
[^4]: Tanner v. McILveen Estate, 176 A.C.W.S. (3d) 975 [Tanner].
[^5]: For comparison:

31.06(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action .... [Emphasis added.]

and

30.02(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed .... [Emphasis added.]

[^6]: Ibid. at para. 3.
[^7]: Ibid. at para. 10.
[^8]: Ibid. at para. 7 (referring to Kay v. Posluns, 71 O.R. (2d) 238, 1989 4297 (ON SC), 18 A.C.W.S. (3d) 24 at para. 8).
[^9]: Ibid. at para. 8.
[^10]: Ibid. at para. 9.
[^11]: Ibid. at para. 16.
[^12]: At the time of the hearing before Justice Wilson, the Rule required that questions on discovery “relate to a matter in issue in the action”. As such, the motion was decided according to an earlier test which is commonly referred to as the “semblance of relevance” test. This is not as strict a test as the revised test set out in rules 30.02(1) and 31.06, which require that the document or question be “relevant to a matter in issue in the action”.
[^13]: Ibid. at para. 19, and paras. 17-18, 21.
[^14]: Ibid. at para. 22.
[^15]: The code of conduct is a regulation under the Police Services Act (Members of Police Service Boards – Code of Conduct, O. Reg. 421/97).
[^16]: Andrushko v. Ontario, 2011 ONSC 1107 at paras. 17-18.