ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

Court File No.: M 282/13
Date: 20131118

B E T W E E N:

HER MAJESTY THE QUEEN

G. Hession David, for the respondent

Respondent

• and -

MOHAMMAD KHATTAK

Applicant

N. Gorham, M. Halfyard & D. Brown, for the applicant

Heard: November 8 & 12, 2013

Nordheimer J.:

1Mohammad Khattak brings this application pursuant to s. 490(15) of the Criminal Code for access to two videos that are in the possession of the Toronto Police Service as a consequence of the execution of search warrants on June 13, 2013 in an investigation known as Project Traveller. Mr. Khattak is one of more than forty individuals who were arrested and charged as a result of that investigation.

2At the outset, I should try and dispel some confusion that appears to have arisen from something that Crown counsel said prior to my viewing the videos, as I shall describe later. Crown counsel said that the two videos were part of each other, in the sense that one was a subset of the other. From what I was shown, that is not correct. The video that I viewed is approximately 90 seconds long. It is the one in which the Mayor of the City of Toronto is featured. The second video is much shorter and is separate and apart from that first video. However, from the content of the second video, it might be reasonably concluded that what is revealed in the second video relates back to the first video.

3For the purposes of the balance of these reasons, and for convenience, I shall generally be only referring to the “video”, by which I mean the video that features the Mayor. This is the video that received all of the attention, both publicly and in this application. Notwithstanding that singular reference, I recognize that the applicant’s request is directed to both videos.

4Some background to this application is necessary. The video has been the subject of considerable publicity for some months. In early May 2013, reporters from the Toronto Star viewed a video in which it was reported that the Mayor of the City of Toronto was shown smoking crack cocaine and was also recorded making certain derogatory comments. At or around the same time that the existence of the video was reported, a photograph featuring the Mayor and three other individuals outside a residence became public. It was suggested that the residence shown in the photograph was the residence where the video was recorded. Mr. Khattak is one of the persons in this photograph. One of the other individuals in the photograph is Anthony Smith. Anthony Smith was shot and killed in March 2013. That shooting was one of the events that instigated the Project Traveller investigation.

5Someone, who allegedly had the video, offered to sell it to anyone who would meet the asking price. There was much publicity about this offer. The publicity was increased when an American website, Gawker, took up a collection to raise the necessary funds to purchase the video. However, by the time that the funds were raised, the person trying to sell the video could not be found. The website was therefore unable to complete the purchase and obtain the video. It was suggested, both then and since, that others might also have been trying to purchase the video. With the passage of time, though, the existence of the video itself fell into doubt.

6Then, on October 31, 2013, the Chief of the Toronto Police Service announced that investigators had been able to recover two videos from one of the hard drives that the police had seized pursuant to search warrants issued and executed in Project Traveller. The Chief of Police confirmed that the Mayor was on one of the videos. The Chief of Police also fairly characterized the contents of that video as being “consistent” with previous media reports. The second video was said to possibly be related to the first video.

7In his application, Mr. Khattak’s stated reason for wishing access to the video was on the basis that “it is relevant disclosure which may assist the Applicant in making full answer and defence to the allegations currently before the court”. That basis for gaining access to the video immediately raised the question why Mr. Khattak should not have to wait for the normal disclosure process to be undertaken by the prosecution in his case. Prior to the application being launched, the prosecution had advised Mr. Khattak’s counsel that it had not as yet obtained the video and therefore had not determined whether the video would form part of Crown disclosure.

8Face with that possible obstacle, the basis for the request for the videos changed as the argument proceeded before me. It was then submitted that Mr. Khattak was suffering damage to his reputation and to that of his family because there was a connection being made between his presence in the picture with the Mayor and the people responsible for the video. Mr. Khattak says that he had nothing to do with the recording of the video or the subsequent efforts to sell it. Mr. Khattak asserts that his reputation, and that of his family, is being damaged by the assertion of that connection. It should be noted in this regard that the house, outside of which the photograph is believed to have been taken, is said by the police to be a known location for drug dealing and/or usage. It was also asserted that the house in question was the residence of a high school friend of the Mayor.

9Mr. Khattak says that he is not in the video and has no connection to it. Mr. Khattak says that he has no realistic way of establishing to the outside world the truth of this assertion without access to the video. When I asked whether that reality meant that Mr. Khattak was not only looking to access the video but to publicize it, counsel for Mr. Khattak deflected that question by submitting that what use Mr. Khattak could make of the video would be a secondary issue. The first issue to be determined, according to counsel, was whether Mr. Khattak and his counsel should have access to the video. Whether the secondary issue needed to be addressed would be informed by what Mr. Khattak and his counsel see on the video if they gain access to it.

10Counsel for Mr. Khattak also offered an alternative to their request for access to the videos. They submitted that the court could view the videos and then provide a judicial summary of their contents similar, I suppose, to the process used to address edits to an Information to Obtain regarding confidential informants or like information that arise in wiretap challenges under step 6 of the Garofoli process.¹ I was not initially persuaded that such a review by me would be useful since I would not necessarily know, or be able to recognize, what might be depicted in the videos in terms of the identities of any individuals, or voices, who may appear in the video and other like matters. However, since the videos were not in court and could not be made available quickly, I adjourned the matter over the weekend to allow the Crown to bring the videos to court and for Mr. Khattak’s counsel to further consider their position in this regard.

11As the main hearing drew to a close, I was still inclined to the view that this application was premature and should await the outcome of the disclosure process assuming that process would proceed in a timely fashion. It was at that point, however, that Crown counsel advised me that she had watched the videos the night before and that it was the position of the Crown that the videos would not form part of Crown disclosure in Mr. Khattak’s case because they were “irrelevant”. I asked Crown counsel whether the Crown’s position that the video was irrelevant was based on the fact that Mr. Khattak was not in the video or for some other reason assuming the Crown was prepared to state its position. In response, Crown counsel advised that Mr. Khattak was not in the video, his voice was not on the video and that the video had nothing to do with the offences with which Mr. Khattak stands charged. When I then asked counsel for Mr. Khattak whether that public statement by Crown counsel answered the principal reason for Mr. Khattak’s request to see the video, I was told that it did not because that statement alone did not necessarily disassociate Mr. Khattak from being involved in the making, promotion or attempted sale of the video.

12At this juncture, it is probably helpful to set out the contents of s. 490(15). Section 490 deals with how items seized pursuant to a search warrant are to be dealt with. Section 490(15) itself reads:

Where anything is detained pursuant to subsections (1) to (3.1), a judge of a superior court of criminal jurisdiction, a judge as defined in section 552 or a provincial court judge may, on summary application on behalf of a person who has an interest in what is detained, after three clear days notice to the Attorney General, order that the person by or on whose behalf the application is made be permitted to examine anything so detained.

13Section 490(15) permits individuals to access items seized pursuant to a search warrant for a variety of purposes. Access may be obtained by individuals whether they have a proprietary interest in the items or not. As Dunnet J. said in Canada (Attorney General) v. Ontario (Attorney General), [1997] O.J. No. 5314 (Gen. Div.) at para. 22:

A section 490(15) hearing creates an opportunity for anyone with an interest in the detained materials to obtain access to them, notwithstanding their prior seizure under a Criminal Code search warrant. The scope of the phrase “an interest in what is detained” is not limited to applicants with a proprietary interest in the documents or persons connected with contemplated litigation, but includes persons with a legal concern with matters referred to in the documents.

14For example, s. 490(15) was used by the Attorney General of Canada, in the case to which I just referred, to obtain tax litigation files from solicitors for use in ongoing tax litigation.² The section has also been used by a victim of fraud to obtain access to records that the victim wished to use to advance litigation ongoing in the United States against the alleged fraudster – see Haynes v. Ontario [re R. v. Gagne], [1998] O.J. No. 4386 (Gen. Div.). In Haynes, Reilly J. added, at para. 8:

Finally, the motivation for the application and justification for the order need not be directly related to the criminal prosecution that was the basis for the search warrant. Indeed, this is often the case, even when the applicant is the accused and he may claim a proprietary interest in documents seized. Section 603 of the Code and the principles enunciated in R. v. Stinchcombe (1991), 1991 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.), provide appropriate relief to an accused seeking to prepare and present full answer and defence to charges laid. It is not unusual, however, for an accused to seek an order pursuant to s. 490(15) immediately following a seizure and detention in order to carry on his business, to prepare an income tax return or to satisfy disclosure obligations in unrelated matrimonial litigation.

15I begin my analysis of the issue before me by saying that the “interest” that s. 490(15) refers to cannot be interpreted literally. It would cast the authority provided for in the section much too broadly if all that was required was for an applicant to show some “interest” in a particular item. Depending on the prevailing circumstances, a great many people could have an “interest” in items seized. In this case, for example, many members of the public would likely be able to establish that they have an “interest” in the video, as would most media organizations.

16It seems to me that to properly invoke the authority contained in s. 490(15), a person must establish two things: (i) that s/he has a “legal” interest (or legal concern as Dunnet J. put it) in the item and (ii) that being permitted to have access to the item is necessary in order to advance that legal interest or concern in some concrete and required fashion. The most common example is the one that is revealed by the cases I have referred to and that is the continued prosecution or defence of outstanding litigation. It would also include those instances to which Reilly J. referred in Haynes, namely, the need to carry on a business or prepare some government mandated document.

17I am prepared to accept that Mr. Khattak had an “interest” in the video, at least up to the point that Crown counsel publicly confirmed that he is not in the video nor is his voice on the video. It may be that Mr. Khattak’s appearance in the photograph with the Mayor is being unfairly used to suggest that he has a connection to the video. If so, Mr. Khattak may have a legal interest in gaining access to the video so that he can pursue remedies to address that unfairness. Indeed, by the conclusion of the submissions in this application, that became the sole justification for seeking access to it.

18However, even assuming that Mr. Khattak has such an interest in the video, the purpose that would be achieved, by permitting him to have access to it, is much less defined and much less obvious. It was first stated as a vague and unspecified need to curtail alleged damage to his reputation but ultimately counsel for Mr. Khattak was not able to articulate how access to the video was necessary to address that need. That necessity became more difficult to discern after Crown counsel made public the fact that Mr. Khattak is neither in the video nor heard on the video.

19After the weekend recess, the interest being asserted on behalf of Mr. Khattak crystallized somewhat. It was then asserted that Mr. Khattak needed access to the video so that he could be armed with as much information as possible in order to seek advice from civil legal counsel as to possible remedies that might be available to him arising from what is asserted to be the unfair connection being made between Mr. Khattak and the video. Indeed, counsel for Mr. Khattak took the position, in furtherance of that position, that, if the video did not reveal any information that would assist in identifying the persons responsible for recording the video, that would be the end of this application. If, on the other hand, there was information on the video that would so assist then it was contended that Mr. Khattak needed access to that information to properly seek such legal advice.

20It was at that point, in fairness to Mr. Khattak and out of an abundance of caution, that I decided that I would accede to counsel’s request that I review the videos. I considered it prudent to do so just in case I could discern something in the videos that might be of assistance to Mr. Khattak’s stated reason for desiring access to it. With the assistance of a detective from the Toronto Police Service, I viewed, in private, both the video in question and the video that might be related to it. After reviewing the videos, I advised counsel that there was information on the videos that might lead to identifying the persons responsible for the recording of the video. I declined to provide any further detail in that regard as to do so would have, in my view, been the equivalent of revealing the contents of the videos publicly. That said, the issue remains whether the fact that the videos might provide some possibly useful information to Mr. Khattak for this stated purpose constitutes a sufficient interest to justify giving Mr. Khattak access to the videos. I have concluded that it does not.

21At this moment, the only legal interest that Mr. Khattak can point to is a possible civil proceeding that he might commence against unspecified persons for unspecified relief. Mr. Khattak says that he needs the information from the videos both to obtain legal advice and to interest counsel in launching whatever proceeding he might be advised to commence. It is said that Mr. Khattak does not have the resources to retain counsel on his own but, if counsel were satisfied of the likely success of any contemplated proceeding, they might take on his case on a contingency fee basis or some other similar arrangement.

22I do not see that access to the videos is necessary for Mr. Khattak’s now stated purpose. Mr. Khattak is already possessed of sufficient information to get an informed opinion from counsel as to his options. Mr. Khattak knows in his own mind that he has nothing to do with the video. Mr. Khattak now has a public pronouncement by Crown counsel that he is neither in the video nor is his voice on the video. Mr. Khattak also now knows from my review of the videos that there is some information on the videos that might provide a lead to the persons who are responsible for the video. I note, in this latter regard, that there has already been some information revealed by the media that suggests certain connections between individuals and the video, all of which would also provide leads to Mr. Khattak. I do not see how permitting Mr. Khattak to view the contents of the videos would materially aid in his stated objective, that is to obtain legal advice, at least at this preliminary stage.

23Balanced against that reality is the concern of having this video viewed by persons not connected to the prosecution to which the video relates. Crown counsel has said that the video is irrelevant to the prosecution of the charges that Mr. Khattak faces. For present purposes, I must accept that is the case. If that position were to change, Crown counsel would be obliged to immediately disclose the video to Mr. Khattak and his counsel. The video does relate to a separate prosecution against another individual for extortion. That person may well have an interest in ensuring that persons unrelated to that prosecution do not view the videos. Also the video, because of the presence of the Mayor in it, has attracted intense public interest. There is therefore also a concern about inadvertent disclosure of this information as the circle of persons who have knowledge of its contents expands.

24In the end result, I return to the two part test I suggest should be applied to applications under s. 490(15). I am prepared to accept that Mr. Khattak has a “legal” interest in the item for the reasons asserted by him although I view that legal interest at this stage to be very much a contingent one. I am not satisfied, however, given the contingent nature of that interest that permitting Mr. Khattak to have access to the videos is necessary in order to advance that legal interest or concern in some concrete and required fashion. Should Mr. Khattak actually commence a civil proceeding, there is nothing that prevents him from bringing a subsequent application for access to the videos when his interest in them may have become more tangible.

25For these reasons, I have concluded that the application must be dismissed.

NORDHEIMER J.

Released: November 18, 2013

SUPERIOR COURT OF JUSTICE

Footnotes

1. 1see R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para. 79
2. 2A similar basis was relied upon for access to seized documents in Canada (Attorney General) v. Ontario (Attorney General), [2002] O.J. No. 2357 (S.C.J.)