The Commissioner of the Ontario Provincial Police et al.v. Her Majesty The Queen Public Prosecution Service of Canada et al.

[Indexed as: Ontario Provincial Police (Commissioner) v. Canada (Public Prosecution Service of Canada)]

Ontario Reports

Ontario Superior Court of Justice,

Fregeau J.

April 8, 2014

119 O.R. (3d) 264 | 2014 ONSC 2212

Case Summary

Criminal law — Preliminary inquiry — Jurisdiction — Preliminary inquiry judge issuing subpoenas duces tecum compelling police chiefs to appear and bring copies of policy directives relating to documenting and tracking of confidential informants — Judge exceeding his jurisdiction in effectively granting production order for documents which Crown had refused to disclose and which were arguably in possession of third parties — Preliminary hearing judge having no jurisdiction to rule on disclosure motion regardless of whether being first party or third party records application.

The respondents were charged with drug offences. The Crown's case included intercepted private communications. The informations to obtain the wiretap authorizations referred to information allegedly obtained from 21 confidential informants. The Crown refused a request from counsel for the respondent M for disclosure of police policy directives and/or protocols related to the documenting and tracking of confidential informants and police agents for 2011-2012, taking the position that the materials sought were irrelevant and protected by informer privilege. After the preliminary inquiry started, counsel for M applied successfully to the preliminary inquiry judge for the issuance of subpoenas duces tecum to compel two police services to produce their policies, guidelines and protocols in respect of the handling and managing of confidential informants. The police services brought an application to quash the subpoenas on the basis of public interest privilege, and argued that a third party records application was required in accordance with O'Connor. The accused argued that the documents were not third party records and that the policy documents sought should be considered quasi-legislative documents within the jurisdiction of the preliminary hearing judge to order released.

Held, the application should be allowed.

In issuing the subpoenas, the preliminary inquiry judge in effect granted a production order for documents that he knew the Crown had refused to disclose and which were arguably in the possession of third parties. A preliminary inquiry judge does not have jurisdiction to hear a disclosure application, whether it be a first party Stinchcombe/MacNeil application or a third party records application in accordance with O'Connor. In issuing the subpoena, the preliminary hearing judge exceeded his jurisdiction. [page265]

Cases referred to

R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, 246 O.A.C. 154, 238 C.C.C. (3d) 353, EYB 2009-153175, J.E. 2009-174, 301 D.L.R. (4th) 1, 383 N.R. 1, 62 C.R. (6th) 1; R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Rankin, 1995 8928 (ON CA), [1995] O.J. No. 1381, 127 D.L.R. (4th) 170, 100 C.C.C. (3d) 329, 39 C.R. (4th) 390, 28 C.R.R. (2d) 173, 28 W.C.B. (2d) 213 (C.A.); R. v. Regan, 1997 9853 (NS CA), [1997] N.S.J. No. 69, 144 D.L.R. (4th) 456, 158 N.S.R. (2d) 290, 113 C.C.C. (3d) 237, 41 C.R.R. (2d) 298, 34 W.C.B. (2d) 13 (C.A.); R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210, 14 W.C.B. (2d) 266

Statutes referred to

Canadian Charter of Rights and Freedoms

Criminal Code, R.S.C. 1985, c. C-46, s. 700(1)

Police Services Act, R.S.O. 1990, c. P.15

APPLICATION to quash subpoenas.

Christopher Diana, for applicant Commissioner of the Ontario Provincial Police.

Holly Walbourne, for applicant Thunder Bay Police Service.

Michael Jones, for respondent Her Majesty The Queen Public Prosecution Service of Canada.

Michael Moon, for respondents Brandie Mosher, Zahed Khan, Justin Cain, Neil Thompson and Rashad Waquad.

FREGEAU J.: —

Introduction

[1] The applicants, the Thunder Bay Police Service ("TBPS") and the Ontario Provincial Police ("OPP") have brought an application seeking to quash two subpoenas duces tecum issued by the Honourable Justice F.A. Valente of the Ontario Court of Justice in Thunder Bay, Ontario on November 12, 2013 during the course of a preliminary inquiry.

[2] The subpoenas compelled the superintendent of the OPP and the chief of police of the TBPS (or their designates) to appear at the preliminary inquiry before Valente J. on November 15, 2013, and to bring with them "copies of any and all policy directives and/or protocols related to the documenting and tracking of confidential informants and police agents for the year 2011-2012".

[3] Her Majesty the Queen (Public Prosecution Service of Canada ("PPSC")) does not oppose the applications. [page266]

Background

[4] The respondents (the "accused") are jointly charged with a number of drug offences as part of Project Harrington, a multi-police force drug and criminal organization investigation involving the TBPS, the OPP, the Royal Canadian Mounted Police and the Nishnawbe-Aski Police Service. The PPSC has carriage of the prosecution.

[5] The Crown's case includes intercepted private communications. As part of the information to obtain to secure the required authorization for the wiretaps, the affiant made reference to and relied upon information allegedly obtained from 21 confidential informants ("CIs").

[6] On August 20, 2013, counsel for Ms. Mosher e-mailed a request for disclosure to the PPSC requesting the disclosure of the "Informant Directives/ and or Policies Procedures" from the relevant police agencies (the RCMP, TBPS and OPP) involved with informants in this investigation. On August 23, 2013, the PPSC counsel replied to this disclosure request, stating that "such materials are both irrelevant and protected by informer privilege and therefore will not be disclosed".

[7] A preliminary inquiry began on September 23, 2013 in Thunder Bay. The preliminary inquiry proceeded on an intermittent basis from that date forward. On October 25, 2013, during the course of the preliminary inquiry, counsel for Ms. Mosher applied to a justice of the peace for the issuance of subpoenas duces tecum to compel the OPP and the TBPS to produce their policies, guidelines and protocols in respect of the handling and managing of CIs. The justice of the peace declined to issue the subpoenas.

[8] On October 29, 2013, at the start of the day's proceedings, counsel for Ms. Mosher applied to the preliminary inquiry justice for the issuance of the subpoenas which the justice of the peace had declined to issue. Ms. Mosher told the preliminary inquiry justice that the materials that were the subject matter of the subpoenas would be used during the preliminary inquiry for a proposed Dawson application which had not been brought by that date because of alleged disclosure difficulties.

[9] The preliminary inquiry justice heard submissions in respect of the subpoena application on October 29, 30 and 31, 2013. The respondent police agencies were not given notice of the subpoena application. No transcript of the proceedings from these three dates was filed for the purpose of the application before this court. [page267]

[10] On November 12, 2013, Valente J. issued the subpoenas, indicating his reasons for doing so would follow. The subpoenas required the superintendent of the OPP and the chief of the TBPS, or their designates, to attend before him on November 15, 2013 "and to bring with them copies of any and all policy directives and/or protocols related to the documenting and tracking of confidential informants and police agents for the year 2011-2012".

[11] On November 13, 2013, Valenta J. provided his reasons for issuing the two subpoenas duces tecum. The transcript of these reasons was filed as part of the evidence on this application to quash the subpoenas.

[12] Valente J. noted that the preliminary inquiry had been lengthy, the evidence quite extensive and that the record had been clear that "there have been a number of significant and rather disconcerting difficulties in relation to . . . disclosure".

[13] Valente J. identified the nature of the documents sought by way of the subpoenas he was being asked to issue -- policy manuals or rules and guidelines as they relate to the handling and managing of confidential informants. The preliminary inquiry justice also noted that the subpoenas in question were addressed to the superintendent of the OPP and the chief of police of the TBPS.

[14] Valente J. was advised by defence counsel that the "Crown purported not to be in possession of the documents being subpoenaed" and that the Crown would, or should, therefore not be a party to counsel's subpoena application. At this point, specifically in response to a question from the bench, the Crown acknowledged that Valenta J. had the jurisdiction to issue the requested subpoenas if satisfied as to the "materiality" test.

[15] Valente J. referred to the preliminary inquiry evidence of the Crown witness Staff Sergeant James Graham ("Graham"). Valente J. noted that Graham testified that all police agencies were required to have guidelines for the handling of CIs pursuant to the Police Services Act, R.S.O. 1990, c. P.15 and that the guidelines may be different from one police agency to the next. Graham also testified that applicable guidelines would set out the responsibilities of the police service applying them, would have been reviewed between officers involved in Project Harrington and would mandate steps to be taken by the police services before they can classify any potential CI as "reliable".

[16] Out of concern that the justice of the peace may have refused the subpoena applications on their merits and that he was being asked to "review" that decision of the justice of the peace, Valente J. extensively reviewed the transcript of proceedings before His Worship Guthrie of October 25, 2013. Valente J. [page268] included extensive portions of this transcript in his reasons. He specifically noted in his reasons of November 13, 2013 that "the argument submissions offered by the proponents of the subpoenas presented to Justice of the Peace Guthrie on October 25, 2013 are similar to if not identical to, those offered to this court on October 29, 2013, October 30, 2013 and October 31, 2013".

[17] As noted above, the transcript of proceedings before Valente J. on October 29, 30 and 31, 2013 was not put before this court for the purposes of this application. I am prepared to utilize the same transcript of proceedings before His Worship Guthrie as that utilized by Valente J. and as set out in the transcript of Valente J.'s reasons of November 13, 2013 given that Valente J. expressly acknowledged that the submissions made on the subpoena application before him on October 29, 30 and 31, 2013 were the same as the submissions made to the justice of the peace on October 25, 2013. It is clear that the content of these submissions informed Valente J.'s decision to issue the subpoenas in question.

[18] The submissions of defence counsel to the justice of the peace on October 25, 2013 and stated by Valente J. to have been the submissions before him in support of the subpoena application included the following:

"Now what I'm looking for and have been refused by virtue of disclosure is just the policy and procedural manual which is essentially just a rule book of how each police service, each police service manages his and her informants in a certain way pursuant to certain directions and directives. . ." (Valente J.'s Reasons, pg. 6, November 13, 2013):

"I requested the policy manual (from the Crown) with respect to the CI's by virtue of disclosure and I was told absolutely not and so given that we're in a situation where we're in the preliminary inquiry and of course the preliminary hearing judge can't make an order for disclosure to happen. The Crown's position certainly is that they don't have the directive in any event." (Valente J.'s Reasons, pg. 6, November 13, 2013):

". . . and I'm being refused it by the mechanism avail--or one of the mechanisms available . . . asking for it through disclosure so I'm going to the Police Service . . ." (Valente J.'s Reasons, pg. 8, November 13, 2013, 2013).

[19] Valente J. reviewed the applicable provisions of the Criminal Code, R.S.C. 1985, c. C-46, including s. 700(1), which reads:

700(1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject matter of the proceedings.

[20] Valente J. cited R. v. Rankin, 1995 8928 (ON CA), [1995] O.J. No. 1381, 127 D.L.R. (4th) 170 (C.A.) and R. v. Regan, 1997 9853 (NS CA), [1997] N.S.J. No. 69, 144 D.L.R. (4th) 456 (C.A.) as authority for the jurisdiction [page269] of preliminary inquiry justice to issue a subpoena duces tecum. Valente J. also cited Rankin and Regan as authority for the factors a justice must consider in deciding whether to exercise the jurisdiction and issue the subpoena, essentially an assessment of the materiality and relevance of the proposed evidence.

[21] Valente J. found, based on the evidence heard to that point in time on the preliminary inquiry, that it was "apparent that based on information received from a CI or CIs the authorities engaged in a Part VI investigation and sought and obtained a number of production orders in addition. It is also apparent, at least from the evidence of Staff Sergeant Graham, that at the very least, policy guidelines for the handling of CIs exist and were applied in this case".

[22] Valente J. concluded that "the policy manuals or guidelines would be 'likely' material given that in my view, it or they, would be relevant to any such Dawson application(s) and . . . would also be relevant to the purposes of the preliminary inquiry -- if not to the primary purpose, (committal or discharge) -- at the very least to the secondary or ancillary function of the inquiry ". Valente J. went further and stated that he would have exercised his discretion and jurisdiction and issued the subpoenas even in the absence of a proposed Dawson application, finding that the policy manuals or guidelines would be "relevant and material" to the course of the preliminary inquiry.

[23] Valente J. concluded his reasons of November 13, 2013 by noting that the court had been put on notice that a privilege claim may be advanced. Given same, Justice Valente stated that "this court will entertain further submissions by any interested party . . . relative to the manner in which the subpoenaed materials are to be received by the court pending a determination of any claim of privilege that may be advanced in relation to those materials".

[24] On November 15, 2013, the return date on the November 12, 2013 subpoenas, counsel for the PPSC, TBPS and the accused appeared before Valente J. Mr. Jones, counsel for the PPSC appeared as designate for the OPP and filed with the court, in a sealed envelope, the subpoenaed documents of the OPP. The sealed envelope stated, and Mr. Jones confirmed, that the OPP were claiming a public interest privilege in the documents which were subject to the subpoena. Mr. Jones, in providing the sealed documents to the court, and in speaking for the PPSC, took the position that the documents were never in the Crown's possession.

[25] In discussing the manner in which the court would receive the documents from the OPP, Valente J. expressly stated that he would "entertain further submissions from any interested party or counsel from any interested parties to how the court is to receive them". In commenting on the public interest privilege asserted over the materials by the OPP, Valente J. stated that "I believe that that issue needs to be dealt with in this court". Valente J. recognized that Mr. Jones was simply an OPP designate on that date and that the OPP had to retain and instruct counsel on the issue. The court stated that he was prepared to grant time to counsel and reiterated that he was "prepared to hear submissions from any interested party or counsel for an interested party which would include counsel for the OPP".

[26] Mr. Edwards appeared before Valente J. on November 15, 2013 on behalf of the TBPS. Mr. Edwards delivered to the court the TBPS documents in response to the subpoena issued to them on November 12, 2013. Mr. Edwards advised the court that the TBPS were claiming the documents were subject to privilege and that that "matter needs to be argued at some stage, and perhaps in, perhaps in this forum, perhaps in another forum". Mr. Edwards advised the court that he had not reviewed the November 13, 2013 reasons as of yet and that he had to do so and obtain instructions.

[27] The court received the documents from the TBPS in a sealed envelope subject to "further submissions by any interested party in respect of the public interest privilege that is clearly being claimed by Mr. Edwards on behalf of the TBPS".

[28] In due course, the preliminary inquiry was adjourned from November 15, 2013 to December 5, 2013 and then to January 17, 2014 to hear submissions on any issues relating to privilege. There is nothing in the record before me indicating that the PPSC, the OPP or the TBPS at any time on November 13 or 15, 2013 suggested to Valente J. that the subpoenaed documents were third party records.

[29] The OPP's notice of application for certiorari in this court was issued November 22, 2013. The TBPS's notice of application for certiorari and prohibition was issued November 24, 2013. At the hearing of these applications on January 9, 2014, I was advised by counsel for the OPP that Valente J. would not be releasing his decision on the privilege issue until my decision on these applications was released.

The Positions of the Parties

The OPP

[30] The OPP submits that the documents which are the subject of the two subpoenas issued by Valente J. are clearly third party records and that the procedure to obtain production of third party records is set out in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98. The OPP further submits that a preliminary inquiry judge is without jurisdiction to order the production of third party records.

[31] The OPP submits that the preliminary inquiry justice failed to consider whether the documents sought were third party records and, in turn, failed to give the OPP an opportunity to be heard on the issue. The latter is suggested to be a denial of natural justice for the OPP; the former is suggested to be a jurisdictional error. The OPP submits that Valente J. was without jurisdiction to issue the subpoenas in these circumstances.

The TBPS

[32] The TBPS acknowledges the jurisdiction of a provincial court judge to issue a subpoena, either duces tecum or ad testificandum. However, the TBPS submits that an issue arises when a subpoena duces tecum compels the disclosure of third party records, which is what the TBPS suggest occurred in this case.

[33] The TBPS submits that the records which are the subject of the subpoenas in this case relate to police investigative techniques relating to CI's. The TBPS submits that these records are third party records and that the disclosure of third party records is governed by the regime established in O'Connor.

[34] The TBPS submits that a preliminary inquiry justice does not have jurisdiction to hear an O'Connor application. The TBPS submits that Valente J. did not invite submissions from the respective record holders as to the nature of the records sought. The TBPS submits that Valente J. committed a jurisdictional error by failing to consider whether the records sought were subject to the third party record disclosure regime established in O'Connor.

The PPSC

[35] The PPSC submits that the probability of the defence bringing a Dawson application during the preliminary inquiry does not allow the defence to bypass required production procedures in order to obtain production of documents for the purpose of that application at the preliminary inquiry.

[36] The PPSC submits that the documents which are the subject of the subpoenas in question were requested from the Crown as first party disclosure. This request was refused because the Crown, in the exercise of their discretion, came to the conclusion that the documents sought were beyond their disclosure obligations as set out in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83 and [page272] R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3 and that the records were not in their possession in any event. The PPSC submits that production of these records must be pursued by way of a third party records application.

[37] The PPSC submits that regardless of whether disclosure is sought pursuant to a Stinchcombe or O'Connor application, a preliminary inquiry justice does not have jurisdiction to hear it. These applications are within the jurisdiction of the trial judge alone, being Canadian Charter of Rights and Freedoms based applications.

[38] In these circumstances, the PPSC submits that it was, or should have been, apparent to the preliminary inquiry justice that the subpoenas he was being asked to issue were being sought to compel disclosure that had been refused by the Crown in the first instance. The disclosure was being sought under the guise of a proposed Dawson application to be brought at the preliminary inquiry. By issuing the subpoenas in these circumstances, the PPSC submits that the preliminary inquiry justice essentially ordered production of the subject material, something which was beyond his jurisdiction.

The respondents

[39] The respondents submit that Valente J. had the general jurisdiction as a preliminary inquiry justice to issue both a subpoena duces tecum and a subpoena ad testificandum. Thus, Valente J. had the statutory and implied authority to compel the attendance of a witness and to require a witness to bring documents with him -- subject to determinations of materiality and relevance. It is submitted that only after Valente J. was satisfied as to the materiality of the documents sought by way of the subpoenas did he authorize their issuance.

[40] The respondents further submit that the applicants are not third parties to this proceeding and that the subpoenaed documents are not third party records. The respondents submit that the documents sought by them are quasi-legislative documents that are within the jurisdiction of a preliminary inquiry judge to compel be brought before him for the purposes of the preliminary inquiry.

Discussion

[41] When Valente J. issued the subject subpoenas on November 12, 2013, he had knowledge of the following facts as a result of evidence heard on the preliminary hearing and submissions by counsel in support of the application for the subpoenas in question: [page273]

(1) that all police agencies, including the applicants, were required to have guidelines relative to the handling of CI's pursuant to the provisions of the Police Services Act;

(2) that defence counsel had specifically asked Crown counsel for copies of these manuals by way of a first party disclosure request of Crown counsel;

(3) that this disclosure request had been refused on the basis of relevancy and on the further basis that the Crown did not have the requested documents in their possession.

[42] It was not suggested before me on the hearing of this application that Valente J. erred in determining the materials sought were material.

[43] Thus, Valente J. was seized with the knowledge that the disclosure of the materials had been requested of the Crown by the defence. Valente J. was also seized with the knowledge that the Crown, in the exercise of their discretion in regard to first party disclosure, had taken the position that the material sought was not relevant and that, in any event, the Crown was not in possession of it.

[44] As a result of the subject subpoenas being directed to the OPP and TBPS, Valenta J. was aware that it was these police agencies that had possession of the documents. In fact, counsel for the respondents, in submissions before Valente J. during the application for the subpoenas, candidly acknowledged to the preliminary inquiry justice that disclosure had been refused "so I'm going to the police service".

[45] While these police agencies had possession of the documents defence counsel were seeking to compel production of, they were not invited to make submissions on any aspect of this request for production of records in their possession by way of the subpoenas.

[46] A great deal of time was spent during the hearing of this application arguing whether the records sought were within the first party disclosure obligation of the Crown (the respondents' position) or whether they were third party records and therefore properly subject to the third party production procedure set out in O'Connor (the applicants' position). In my opinion, that determination is neither necessary nor appropriate on the application before this court.

[47] The law is settled that a preliminary inquiry justice does not have jurisdiction to hear a disclosure application, be it a Stinchcombe/McNeil application, a Mills application or an O'Connor application. Regardless of which application method is [page274] utilized, these are matters which can only be determined by a trial judge and not a preliminary inquiry justice.

[48] On the record before him, I find that Justice Valente, in issuing the subpoenas which he issued, in effect granted a production order for documents which he knew the Crown had refused to disclose in the first instance and which were arguably in the possession of third parties. I find that Justice Valente, sitting as a preliminary inquiry justice, exceeded his jurisdiction in doing so.

[49] While production of the subject documents would no doubt be useful to the defence for the purposes of the preliminary inquiry, they are not in a position to compel their production at this stage. The respondents are entitled to bring a Stinchcombe/McNeil application and/or an O'Connor application for production of this material, the latter being on notice to the record holders. This will allow the applicants a hearing on the issue of the status of the records and whether or not they should be produced. These applications must be brought before the trial judge.

[50] This issue was not put before Valente J. nor could it have been on the preliminary inquiry. Valente J. was sensitive to the issue of public interest privilege because it was raised before him on November 15, 2013, when the respondents appeared at the preliminary inquiry with the subpoenaed documents. Valente J. invited submissions "from any interested party" on the issue of privilege and as to the "manner in which the subpoenaed materials are to be received by the court".

[51] The position taken by Valente J. on November 15, 2013 does not, however, alter the fact that he had, while sitting as a preliminary inquiry justice, effectively ordered the production of documents the Crown had declined to disclose and/ or which were not in the Crown's possession. I therefore find that he exceeded his jurisdiction by issuing the subpoenas in the first instance on November 12, 2013.

[52] The subpoenas to a witness dated November 12, 2013 and directed to

(1) superintendent, OPP, Northwest Region Headquarters, 615 James Street South, 2nd Floor, Thunder Bay, Ontario; and

(2) Mr. J.P. Levesque, chief of police, Thunder Bay Police Service, 1200 Balmoral Street, Thunder Bay, Ontario

are hereby quashed.

Application allowed.

End of Document