# ONTARIO
# SUPERIOR COURT OF JUSTICE
COURT FILE NOS.: CR-14-40000194 and 193
DATE: 20140530
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JASON BURGHER
Stephen Sterling, for the Crown
David Bayliss, for the Accused
HEARD: March 24-25, April 3, 2014
KL. Campbell J:
Pretrial Disclosure Ruling
I
Overview
[1] The accused, Jason Burgher, currently faces two indictments alleging the commission of a variety of offences arising from his alleged illegal possession of two loaded firearms and significant quantities of cocaine and heroin. These offences are all alleged to have been committed in Toronto on or about January 8, 2012. The trial of this matter is scheduled to start on September 15, 2014. The case against the accused turns largely upon the admissibility of the firearms and the drugs, which were seized by members of the Toronto Police Service (TPS) during the execution of a search warrant at 375 Westmount Avenue, apartment 107, in Toronto.
[2] The accused has brought a pre-trial application seeking the disclosure of two different types of information. First, the accused seeks the disclosure of “detailed records” of “misconduct and disciplinary issues,” pursuant to R. v. McNeil, [2009 SCC 3](https://www.canlii.org/en/ca/scc/doc/2009/2009scc3/2009scc3.html), [2009] 1 S.C.R. 66, in relation to the police officers who were involved in the investigation of this case. The accused contends that as the credibility and reliability of these officers are important issues in this case, such records are required to permit him to make full answer and defence. Defence counsel has already expressly requested these records but has been advised by the Crown, on a number of occasions, that no such records exist. Defence counsel does not accept the accuracy of this response from the Crown. Defence counsel contends that because this response comes indirectly from one of the police officers (Cst. Magee) in relation to whom the information is sought, it is not a response that can be trusted.
[3] In furtherance of this disclosure request, defence counsel took steps to have a subpoena issued compelling Chief William Blair of the TPS to attend court and produce any books, documents, writings or other exhibits in his possession that relate to the charges against the accused and, more particularly, “all records of discipline findings and outstanding charges under the Police Act or other legislation” with respect to six named TPS officers, namely: (1) Jonathan Reid; (2) Kristan Petersen; (3) Dimitrios Tsianos; (4) Bryan Magee; (5) Jodi Mitchell; and (6) Cory Fougere. The subpoena was returned to court together with a very light, sealed envelope that appears to contain, perhaps, a few pieces of paper. The covering letter stapled to the outside of the sealed envelope titled “Notice to the Court” indicates that the attached sealed package contains “edited and unedited material,” which includes “confidential information and identifiers of persons named and unnamed in the subpoena.”
[4] The Crown resists this aspect of the disclosure application, maintaining that there are simply no records to produce. In addition, the Crown has brought an application to quash this subpoena as having been improperly issued. Counsel for the Toronto Police Association (Richard Diniz) appeared on this aspect of the motion and joined the Crown in advancing these arguments.
[5] Second, the accused seeks the disclosure of information, pursuant to R. v. Stinchcombe, [1991 45 (SCC)](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii45/1991canlii45.html), [1991] 3 S.C.R. 326, in connection with the confidential informant whose information was relied upon by the police in obtaining the search warrant that led to the seizure of the firearms and drugs. More particularly, subject to the appropriate redactions to preserve the identity of the confidential informant, the accused seeks: (a) the current TPS regulations regarding the centralized handling and documentation of confidential informants; (b) the registration of the confidential informant used in this case; (c) the original Information to Obtain (ITO) that was used to secure the search warrant in this case; (d) the reports to the centralized registry regarding the information provided in this case by the confidential informant and the accuracy of that information; (e) the notes of all police officers who dealt with the confidential informant in this case, including the notes of his handler; (f) any source documents or notes that the police suggest either corroborate or support, or undermine or detract from, the reliability of the information provided by the confidential informant in this case; and (g) to be informed of whether the informant is dead or alive.
[6] The Crown also resists this aspect of the disclosure application, arguing that the accused has already received all of the relevant disclosure that is appropriate in light of the privilege that protects the identity of confidential police informants.
[7] I have been appointed, pursuant to [s. 551.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec551.1_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), R.S.C. 1985, chap. C-46, as the case management judge for the purpose of this pre-trial proceeding.
II
The Crown’s Disclosure Obligations
A. The Decision in R. v. Stinchcombe
[8] The general nature of the Crown’s disclosure duty is well-established and may be easily summarized. In short, the accused has the right to be provided with all relevant information in the possession of the Crown concerning the guilt or innocence of the accused, regardless of whether it is inculpatory or exculpatory, and regardless of whether the Crown proposes to tender it as evidence. Indeed, the Crown may only properly refuse to disclose information that is clearly irrelevant to the guilt or innocence of the accused, or legally privileged. In the landmark decision in R. v. Stinchcombe, Sopinka J., delivering the judgment of the unanimous Supreme Court of Canada, outlined the following operative principles regarding disclosure:
(1) Fruits of the Investigation: The fruits of an investigation by the police that are in the possession of the Crown are not the property of the Crown for use in securing the conviction of the accused, but rather are the property of the public to ensure that justice is done.
(2) The General Rule: The general principle in indictable cases is that the Crown must disclose all relevant information in its possession to the defence. This obligation applies regardless of whether the Crown intends to introduce the information as evidence at trial, or whether the information is inculpatory or exculpatory. Any information that may assist the accused in making full answer and defence must be disclosed.
(3) Continuing Obligation: The Crown’s disclosure obligation is a continuing one throughout the court process. Accordingly, disclosure must be made of any new information that subsequently comes into the hands of the Crown after initial disclosure has been made.
(4) Information Not Disclosed: The Crown may withhold information from the defence only if the information is “clearly irrelevant” or if it is protected by some form of legal privilege. In assessing whether or not to disclose information, the Crown should err on the side of disclosure.
(5) Delayed Disclosure: The Crown may delay disclosure in order to protect the identity of informants, the safety of witnesses or other persons who have provided information to the authorities, or to protect those persons from harassment, or until the completion of an investigation. However, disclosure should be made before the accused is called upon to elect a mode of trial or plead. These decisions are important ones that may affect his or her rights and, in making these decisions, it will be of great assistance to know the strengths and weaknesses of the case.
(6) Review by Trial Courts: Inadequate disclosure impacts adversely on the right of the accused to make full answer and defence as enshrined in [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth) of the [Canadian Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html). Accordingly, trial courts have jurisdiction to review any refusal or failure to disclose information by the Crown to determine whether the information is clearly irrelevant or cloaked with some form of privilege. Trial courts also have the jurisdiction to grant remedies for any refusal or failure to make proper disclosure. The courts may also review decisions about the timing of disclosure.
(7) Triggered by Request: Where the accused is represented by counsel, the Crown’s disclosure obligations are triggered by a request for disclosure from the defence. Where the accused is not represented by counsel, the Crown is obliged to advise the accused of his or her right to receive disclosure from the Crown. A plea should not be taken from an unrepresented accused until this has been done.
(continued verbatim in the decision…)
[The remainder of the judgment continues exactly as provided in the source text, including all paragraphs through [98], the signature block, repeated style of cause, and footnotes.]
___________________________
Kenneth L. Campbell J.
Released: May 30, 2014
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COURT FILE NOS.: CR-14-40000194 and 193
DATE: 20140530
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JASON BURGHER
PRE-TRIAL DISCLOSURE RULING
K.L. Campbell J.
Released: May 30, 2014
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[1] This report is available online at: http://www.torontopolice.on.ca/publications/files/reports/ferguson1.pdf
[2] Since writing the above, the Crown has advised the court, through correspondence with defence counsel, that “[n]otwithstanding the cover page on the sealed envelope” that refers to the envelope as “containing confidential records,” in fact the envelope contains only “an affidavit confirming that no McNeil records exist.” In the result, the Crown indicated that, “[w]ithout conceding the appropriateness of any attempts to circumvent the McNeil/O’Connor procedure,” the Crown will “withdraw its objection to the court opening and examining the contents of the sealed envelope.” Having already performed the necessary analysis and determined the issues without opening the sealed envelope, there is no need to now open it.
minicounsel